Appeals Court: Brevard County (FL) Officials Can’t Discriminate Against Atheists July 8, 2019

Appeals Court: Brevard County (FL) Officials Can’t Discriminate Against Atheists

Once again, a federal court has ruled against a Florida county that discriminated against atheists.

The 11th U.S. Circuit Court of Appeals said in a unanimous decision today that the Brevard County Commissioners’ policy of only allowing religious speakers — but not atheists — to give invocations is unconstitutional.

This controversy began in 2014, when the Brevard County Commissioners chose to limit their invocations to “faith-based” groups. They also said members of the Central Florida Freethought Community could only speak during the “Public Comments” portion of the evening.

After the CFFC was rejected, the Anti-Defamation League sent a letter urging the Commissioners to reconsider:

The Commission’s decision to prohibit an atheist from delivering an invocation would most likely violate the standards set forth in the U.S. Supreme Court’s recent decision in Greece v. Galloway

Although this decision significantly broadens the types of opening prayers at meetings of local legislative bodies, invocation practices are not without limitation. Indeed, the Court required that a legislative body must implement a non-discrimination policy with respect to prayer givers. This means that the person who gives an invocation or prayer — whether a public official, member of the clergy, or an ordinary citizen — cannot be denied the prayer opportunity based on his or her faith, including a minority religion or atheism.

It was a sensible letter meant to warn the officials that what they were doing was wrong. Their response? A giant, collective middle finger:

This Board has no intention of violating the U.S. Supreme Court by following your flawed interpretation of the Court’s ruling in the Town of Greece case.

The Commission said that allowing atheists to deliver an invocation would “show hostility toward the faith-based community”… as if religious invocations were always welcoming for everybody while secular invocations would, by definition, be anti-religious. It was apparent the commissioners had never bothered looking at the perfectly harmless invocations on the CFFC’s website, which celebrate inclusivity and mutual respect under the law.

In July of 2015, Brevard County Commissioner Curt Smith doubled-down on his colleagues’ position, telling atheists they could address the crowd at meetings… during the public comments portion of the meeting.

[Smith] says he wants to make it clear that representatives of atheist, agnostic and secular humanist groups are more than welcome to address commission meetings. Only not during the invocations at the start of the meeting.

Do we get separate-but-equal bathrooms and water fountains, too…?

Since Greece v. Galloway, judges have always been pretty clear on this: If invocations are allowed at all, they must be open to any representative of any faith or no faith. You can’t exclude atheists on a whim. Yet in Brevard County, atheists were definitely excluded.

Here’s a graphic showing the religious makeup of Florida compared to the religious diversity of invocation speakers in Brevard County:

(The “Nones” in that pie chart on the right aren’t atheists. The religious affiliations of those speakers were simply not available to the people putting together the graphic.)

Despite the evidence, Smith refused to accept he was doing anything discriminatory:

The invocation is for worshipping the God that created us,” Smith said… Atheist and agnostic[s] “are not going to take the place of the godly invocation. Absolutely not.

A coalition of church/state separation groups had already sent Smith a warning letter that a lawsuit would be coming if the Commission kept up this charade, but nothing had changed. In fact, Smith presented a formal resolution (written by County Attorney Scott Knox) to set his pro-religion rhetoric in stone:

Knox contends in his report that “supplanting traditional ceremonial pre-meeting prayer” with an invocation by atheists or agnostics “could be viewed as county hostility toward monotheistic religions whose theology and principles currently represent the minority view in Brevard County.” Furthermore, “such action may be deemed to violate the Constitution of the state of Florida.”

Just to repeat: the lawyer said allowing atheists to speak would be hostile to the religious minority. As if Christians could never catch a break from all that persecution.

The county’s “facts” never made any sense. Allowing atheists the opportunity to be in the invocation rotation wouldn’t hurt anybody. In essence, Knox was saying that treating atheists/Agnostics the same way as everybody else would be an affront to religious people. His solution, with the Commission’s blessing, was excluding atheists from speaking during that time.

For all these reasons, a lawsuit was filed against Brevard County on behalf of several atheists in the area along with the Central Florida Freethought Community, Space Coast Freethought Association, and Humanist Community of the Space Coast. They were represented by AU, ACLU of Florida, FFRF, and the ACLU Program on Freedom of Religion and Belief.

… the groups assert that Brevard County’s persistent rejection of atheists, humanists and other nontheists who want to deliver solemnizing messages at the commencement of board meetings violates the U.S. and Florida Constitutions.

“Brevard County’s invocation policy blatantly discriminates against people who do not believe in God,” said Alex J. Luchenitser, associate legal director of Americans United and lead counsel in the case. “Such rank discrimination is plainly unconstitutional.”

Daniel Mach, Director of the ACLU Program on Freedom of Religion and Belief, said: “The government should never play favorites with belief. The county’s discriminatory policy is unfair and unconstitutional.”

ACLU of Florida Legal Director Nancy Abudu said: “If a government decides to have a forum that is open for public voices, then it must make it open to all voices — they don’t get to pick and choose. When the Board of County Commissioners blocks one group from having their voices heard, they are essentially saying to these citizens that their beliefs make them unwelcome in their own community. It’s unfair, discriminatory, and unconstitutional.”

All of this was avoidable, but the elected officials were too busy being Christian martyrs to listen to reason and make the appropriate changes to their policies.

In October of 2017, a federal court officially sided with the atheists. U.S. District Judge John Antoon II went to town against the county in his ruling:

The County insists that its restrictions are viewpoint neutral, but this Court disagrees. The County discriminates among invocation speakers on the basis of viewpoint, and its restriction on invocation givers is not reasonable in light of the purpose of the invocation. Thus, even if the pre-meeting invocation period is a limited public forum, this viewpoint discrimination renders the County’s practice unconstitutional.

Regrettably, religion has become such an instrument [of division] in Brevard County. The County defines rights and opportunities of its citizens to participate in the ceremonial pre-meeting invocation during the County Board’s regular meetings based on the citizens’ religious beliefs. As explained above, the County’s policy and practice violate the First and Fourteenth Amendments to the United States Constitution and Article I, Sections 2 and 3 of the Florida Constitution.

Despite that ruling, the County appealed the decision. Today, a unanimous three-judge panel said the earlier decision was the right one. It’s a slap in the face to the Christian supremacists running local politics in Brevard County.

The discriminatory procedure for selecting invocation speakers followed in Brevard County is unconstitutional and it must be rejected. As a result, we have no occasion to reach further constitutional questions, including whether atheists and secular humanists must be allowed to deliver non-theistic invocations. Brevard County’s current legislative prayer practices violate the command of the First Amendment. We need go no further today than to say this: in selecting invocation speakers, the Commissioners may not categorically exclude from consideration speakers from a religion simply because they do not like the nature of its beliefs.

The policy isn’t just anti-atheists. The judges pointed out that the commissioners “favor familiar monotheistic religions over other monotheistic religions that seem unfamiliar.” (A Jewish speaker? Fine. A Rastafarian speaker? Said one commissioner: “Don’t have any idea what that is. But I would say no.”)

The attorneys for the church/state separation side are celebrating the victory, as well they should:

Americans United Associate Legal Director Alex J. Luchenitser, who is lead counsel in the case, said: “Brevard County Commissioners were using religion as the basis for discrimination by allowing only people of preferred faiths to offer invocations. Religious minorities and nonbelievers are equal members of society and they must be treated equally by their elected officials. The court’s decision today made clear that no one should be excluded from civic affairs because of their beliefs about God.

Freedom From Religion Foundation Co-President Annie Laurie Gaylor said: “We’re delighted the appeals court has asserted that such blatant discrimination against nontheists cannot stand. Governmental bodies that open their meetings with invocations must not turn believers into insiders, and nonbelievers into outsiders, by excluding dissenting points of view.

Director of the ACLU Program on Freedom of Religion and Belief Daniel Mach said: “There should never be a religious litmus test for participation in local government meetings. The Brevard County Commissioners have been playing favorites with faith, and we’re pleased that, once again, the courts have told them that enough is enough.

Remember: All of this could’ve been avoided if the stubborn Christians on the County board had just listened to the reasonable atheists. Taxpayers should be furious at the people representing them — considering that the county will have to pay a hefty amount in legal fees. They can appeal again if they want to, but there’s absolutely no reason to think anyone’s going to rule the other way when the religious discrimination here is so blatantly obvious.

(Image via Shutterstock. Large portions of this article were published earlier.)

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