Friday, May 23, 2014
The Legal Directors of the ACLU of Virginia and Americans United for Separation of Church and State have sent a letter to the county attorney of Chesterfield County, Virginia, asserting that the county's prayer policy is unconstitutional. The letter writers assert that the Constitution, as recently construed by the Supreme Court in Town of Greece v. Galloway, requires the county to rescind its existing invocation policy for county board meetings. In their letter, the Directors do not explicitly threaten litigation or actually purport to represent anybody other than themselves and their interest groups. They do, however, request a response within 14 days. And they invite the county attorney to email them if he would like to discuss this matter further.
Like the letter-writing Directors, I do not purport here to threaten litigation or to represent anybody but myself. But their letter interests me more than the typical Americans United for Separation of Church and State threat letter, as Chesterfield County is where I live and pay taxes. And in thinking about how I might respond if I were in the county attorney's shoes, I find the Directors' letter curious as much for what it does not say as for what it says. Unlike other litigation-threat letters, for example, this one does not even explicitly allude to litigation risk. (Compare, for example, the recent AUSCS letter to Roanoke County, which asserts that "[v]iolation of these rules would subject the County to the risk of a legal challenge.") Instead of writing back immediately, then, I might pick up the phone and ask the letter writers to send a follow-up letter addressing a few additional questions so that I could better understand their position and explain it to the Board. Maybe it's not a litigation-threat letter after all. Perhaps something along the lines of the following:
- Why don't you mention Marsh v. Chambers in your letter? As you know (and as I know you know I know you know given our mutual personal history with that case's application to Chesterfield County), Marsh is the case in which the Supreme Court of the United States upheld Nebraska's policy of having a state-paid Presbyterian minister offer invocations at the opening of legislative sessions. I'm trying to figure out what you think has changed since the last time you challenged Chesterfield County's prayer policy and lost under Marsh.
- You assert that the County "must make the [invocation] invitation open to people of all religious persuasions, consistent with the Greece decision." (emphases added) Please explain what you mean. A take-all-comers policy is consistent with Town of Greece, but do you contend that such a policy is constitutionally required under that case? If so, how do you square that contention with Marsh, as interpreted by the Supreme Court in Town of Greece and the Fourth Circuit in Simpson v. Chesterfield County Board of Supervisors?
- After you lost in Simpson, both of you filed an unsuccessful petition for certiorari in which you wrote that the "crux of the Fourth Circuit opinion [in Simpson] is that the Chesterfield County policy 'is in many ways more inclusive than that approved by the Marsh Court.'" Unless Town of Greece further limited what is constitutionally permissible under Marsh, it is hard to see what has changed in the legal landscape that would transform Chesterfield County's policy from constitutional to unconstitutional even under your view of Simpson. I've been following some of the post-decision commentary on Town of Greece, and the general view seems (quite reasonably) to be that the decision is even more permissive than Marsh. (I don't know that I would go so far as Dean Chemerinsky, for example, but he says that the "clear message from Town of Greece v. Galloway is that prayers before legislative sessions are allowed, no matter how much they are sectarian and from a particular religion.") What am I missing?