In March 2013, Judge Urbanski issued an injunction prohibiting Pittsylvania County
from opening its board of supervisors meetings with sectarian
prayers associated with any one religion as a violation of the
Establishment Clause. That case is currently on appeal before
the Fourth Circuit.
In May 2014, the US Supreme Court issued a 5-4 decision upholding
the constitutionality of non-coercive sectarian invocations by
invited clergy and laypeople at city council meetings. See Town of Greece v. Galloway, 572 U.S. ___
(2014). Given this new Supreme Court decision on
public prayer, many localities that had been subject to injunctions
have petitioned courts to modify those injunctions to conform with
Town of Greece.
Pittsylvania County filed a Rule 60(b)(5) motion in Western
District of Virginia seeking to modify the Court's prior
order. The Court, however, held that it was without jurisdiction to
modify its permanent injunction because the matter was on appeal to
the Fourth Circuit. There is a limited exception allowing the
Court to rule on matters "in aid of the appeal."
Under this exception, the Court is permitted to entertain the
motion and issue a short order if the Court is inclined to grant
the motion, thus allowing the movant to request a limited remand
from the Fourth Circuit for that purpose.
After considering the merits of Pittsylvania County's request,
Judge Urbanski determined that the Court was inclined to modify the
injunction "to a very limited extent, i.e., to make it clear,
consistent with Town of Greece, that opening prayers
offered at the start of the Pittsylvania County Board of
Supervisors meetings need not be generic or
nonsectarian." The Court, however, would deny the
request to dissolve the injunction altogether because of factual
differences between this case and Town of
Greece.
First, Pittsylvania County did not invite clergy or laypersons to
offer invocations, as was the case in Town of
Greece. Instead, the prayers were led by the board
members themselves. "Thus, in contrast to Town of
Greece, where the town government had no role in determining
the content of the opening invocations at its board meetings, the
government of Pittsylvania County itself, embodied in its elected
Board members, dictated the content of the prayers opening official
Board meetings."
Second, the Pittsylvania board of supervisors often directed the
public to participate in the prayers by asking them to stand.
For example one board of supervisor began his prayer by stating:
"If you don't want to hear this prayer, you can
leave. Please stand up."
In summary, the Court held that the active role of the board of
supervisors in leading the prayers, dictating their content and
directing public participation distinguished this case from
Town of Greece.
It will be interesting to see how the Fourth Circuit rules in the
appeal.
While it must have been irresistible for Pittsylvania County to
try to dissolve the permanent injunction order after Town of
Greece, given the decision by Judge Urbanski, it would have
been better for the County not to have filed the Rule 60(b)(5)
motion. The Fourth Circuit can now see that the District
Court would have granted the injunction anyway, even after
considering the new Supreme Court precedent. Thus, not only
does this case involve an interesting constitutional question, but
it is also instructive on matters of litigation and appeal
strategy.
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