Williamson v. Brevard County (276 F. Supp. 3d 1260, 2017)

ORDER

JOHN ANTOONII, United States District Judge

The Board of County Commissioners of Brevard- County, Florida, holds regular meetings to conduct the business of the county, and it begins its meetings with invocations delivered by citizens. But the County has a policy and practice barring certain citizens from giving the invocation based on those citizens’ religious beliefs.

’ The Plaintiffs in this case primarily assert that' the County’s invocation practice violates the Establishment Clause of the First Amendment of the United States Constitution. They, also bring claims under the Free Exercise and Free Speech Clauses of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and Article I, Sections 2 and 3 of the Florida Constitution. Plaintiffs seek injunctive and declaratory relief as well as money damages. The case is before the Court on the parties’ cross-motions for summary judgment, and as set forth below, both motions are granted in part and denied in part.

1. Factual and Procedural Background

A. The Parties

This case was brought by eight Plaintiffs—five individuals and three organizations. The individual Plaintiffs—David Williamson, Chase Hansel, Keith Becher, Ronald Gordon, and Jeffrey Koeberl— identify themselves as atheists, and all but Gordon also identify themselves as Secular Humanists, (ASOF ¶85). The American Humanism Association describes Humanism as “a progressive philosophy of life that, without theism and other supernatural beliefs, affirms our ability and responsibility to lead ethical lives of personal fulfillment that aspire to the greater good of humanity.” (Id. ¶ 86). Becher, Koeberl, and Williamson are ordained as Humanist clergy by the Humanist Society; all three are Humanist Celebrants, and Koeberl is also a Humanist Chaplain. (Id. ¶ 93).

Plaintiffs do not profess a belief in the existence of God. (Id. ¶ 209). Their beliefs are strongly held, having a place in their lives equal to the significance of theistic beliefs in the lives of monotheists. (Id. ¶ 91). They consider their beliefs to be a religion. (Id. ¶ 92). Four of the individual Plaintiffs are residents of Brevard County; Williamson lives in neighboring Seminole County. (Id. ¶ 83). Hansel and Gordon own homes in Brevard County and pay property taxes there. (Id. ¶ 84).

The three organizational Plaintiffs are the Humanist Community of the Space Coast (HCSC), the Space Coast Freeth-ought Association (SCFA),.and the Central Florida Freethought Community (CFFC), all of which “are. organizations for non-theists” whose members are principally atheists, agnostics, Humanists, and other nontheists. (Id. ¶¶ 94-95). HCSC and SCFA are headquartered in Brevard County, where most of their members live. (Id. ¶ 96).- CFFC is headquartered in Seminole County, but some of its members reside in Brevard County. (Id.). Plaintiff Gordon is a member of SCFA, (id. ¶ 101), and the other individual Plaintiffs are leaders of the organizational' Plaintiffs, (id. ¶¶ 98-99).

Defendant Brevard County is a political subdivision of the State of Florida that had a population of nearly 550,000 in 2010. (Id. ¶ 1; Doc. 53-8 at 50). The County is known as Florida’s Space Coast because of the presence of NASA and the Kennedy Space Center. (Doc. 53-8 at 37). The Brevard County Board of County Commissioners-(the Board) is the legislative and governing body of the County. (ASOF ¶ 2). The Board has five Commissioners, each of whom represents, and is elected by, voters residing in one of five numbered single-member districts that make up the County. (Id. ¶8). Pursuant to a state statute, “[t]he county commissioners shall sue and be sued in the name of the County.” (Id. ¶ 9; § 125.15, Fla. Stat.). «

B. Board Meetings

The Board meets regularly—typically more than once per month—to discuss issues, hear from citizens, and carry out its responsibilities. (ASOF ¶ 10). The meetings are conducted in a boardroom that is approximately sixty feet wide and seventy feet deep and has 196 seats for audience members and a total capacity of 270. (Id. ¶¶ 10, 18, & 22). During Board meetings, the five Commissioners, the County Manager, and the County Attorney sit on a raised dais facing-the audience; the number of attendees varies from fewer than ten to a full house. (Id. ¶¶ 20-21, 27). Board meetings proceed according to printed agendas, are open to the public, are carried live on cable television, are available for public viewing on the Board’s website, and can be watched live on. a television in a lobby just outside the board-' room entrance. (Id. ¶¶ 12-13). During its meetings, the Board sometimes considers and votes on matters that affect only one person or a small group of people. (Id. ¶ 30).

Board meetings typically begin with a call to order that is then followed by: an invocation; the pledge of allegiance; “resolutions, awards, and presentations”; consent agenda items; and other scheduled matters, including at least one “Public Comment” period. (Id. ¶¶35, 64, & 141:-43). During the “resolutions, awards, and presentations” segment of the meetings, individuals or groups are recognized for contributions they have made to the community, and children sometimes appear before the Board to be honored or to watch those who are being honored. (Id. ¶¶ 36-39). Generally, those who attend the “resolutions, awards, and presentations” segment are also present in the boardroom during the invocation. (Id ¶¶ 38 & 42). Ordinarily, there are more people at the beginning of Board meetings than at the end; usually, some attendees leave before the “Public Comment” segment.' (Id. ¶ 145).

C. Invocations and Selection of Invocation Speakers in the County

Board meetings “are typically opened with a religious invocation” that is “generally, but not always, given by a cleric from the faith-based community.” (Id. ¶¶ 14, 56). Invocation speakers are unpaid volunteers invited by an individual Commissioner or his or her staff; the five Commissioners take turns inviting speakers according to an annual schedule assigning that task for each meeting. (Id. ¶¶ 43, 45, & 49; Anderson Dep., Doc. 42, at 12-13; see also 2013-2014 Invocation and Pledge Schedule, Pis.’ Ex. 64 )v On occasion, the assigned Commissioner has difficulty finding someone to give an opening invocation or a scheduled speaker does not show up, and on those occasions either a Commissioner gives the invocation, a member of the audience is permitted to give the invocation, or a moment of silence, is held in lieu of the invocation. (ASOF ¶¶ 50-51 & 203; see also, e.g., Pls.’ Exs. 30 & V2 (transcript and video of Dec. 15, 2015 and Mar. 15, 2016 invocations) (pastor did not show up and a commissioner gave the invocation); Pis.’ Exs. 29, 30, <& V2 (speaker list, transcript, and video of Mar. 9, 2010 invocation) (reverend did not show up and a Commissioner’s assistant gave the invocation); Pis.’ Exs. 30 & V2 (transcript and video of Sept. 13, 2011 invocation) (unidentified .audience member gave invocation when no one was scheduled); Pis.’ Exs. 30 & V2 (transcript and video of Aug. 19,2014 invocation) (moment of silence observed when pastor did not arrive on time to meeting)).

Not all invited speakers are clergy; non-clergy who have delivered opening invocations include police officers, staff members of a Congressman’s offíce, a state judge, aides to the Commissioners, and a lay leader of the Church of Jesus Christ of Latter-day Saints. (ASOF ¶ 57). Chaplains of hospitals, a baseball team, the Brevard County Sheriffs Office, and a city police department have also given invocations. (Id. ¶ 59).

The selected invocation speaker’s name, along with the name of the organization he or she represents, often appears • on the meeting agenda. (Id. ¶ 65; see also July 7, 2015 Agenda, Doc. 54-2 at 6). The Commissioner who invites the speaker typically introduces the speaker. (ASOF ¶ 66). Some Board Chairpersons ask the audience to stand up for the invocation “out of respect for the religion; of the person giving the invocation.” (Id. ¶¶ 67-68). Other Chairpersons merely stand up and'the other Commissioners and the audience generally follow suit and stand as well, though on occasion some audience members do not stand. (Id, ¶¶ 69-72).

The invocation speaker stands at a lectern at the front of the boardroom and usually, but not always, faces the Commissioners rather than the audience. (Id. ¶ 76; see Pis.’ Exs. V2 & V14 (videos of invocations at Board meetings)). The inviting Commissioner often encourages the invocation speaker to tell the audience about his or her house of worship or organization and its activities before giving the invocation itself. (ASOF ¶ 77). After the invocation is given, a Commissioner usually leads the audience in the Pledge of Allegiance, and after the Pledge the inviting Commissioner thanks the invocation speaker for giving, the invocation. (Id ¶¶ 78-79).

. Neither the- Commissioners nor their staffs review drafts of invocations before they are given. (Id. ¶ 52). From January 1, 2010, through March 15, 2016, 195 invocations were given at Board meetings, and all but seven of those were given by Christians or contained Christian content. (Id. ¶ 53). Six of the seven- “non-Christian” invocations were given by Jews, and the other Was “generally monotheistic.” (Id ¶54), All 195 invocations “had at least some theistic content,” (id. ¶ 60), and “[t]o the parties’ knowledge, all the opening invocations delivered at [Board] meetings have appealed to or invoked a divine authority,” (id. ¶ 204).

D. Requests to Give an Invocation and the Board’s Reactions

Ón May 5, 2014, the United States Supreme Court issued its opinion in Town of Greece v. Galloway, — U.S. —, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014), upholding against an Establishment Clause challenge the invocation practice employed at town board meetings in the town of Greece, New York; that town’s practice also involved invocations given by invited speakers. At that time, the five Commissioners in Brevard County were Chairwoman Mary Bolin Lewis and Commissioners Andy Anderson, Robin Fisher, Trudie Infantini, and Chuck Nelson. Four days after the Town of Greece decision, on May 9, 2014, Plaintiff Williamson, as Founder and Chair of Plaintiff CFFC, sent a letter to Chairwoman Lewis noting the decision and requesting the opportunity to offer invocations at Brevard County Board meetings. (ASOF ¶ 112; May 9, 2014 Letter, Pis.’ Ex. 43). Williamson wrote to Chairwoman Lewis again two months later, stating in a July 22, 2014 letter, that he had not received a response to his May 9 letter and demanding that the County permit a member of CFFC to deliver an invocation and “ensure its selection procedures for invocations comport with the Constitutions of Florida and the United States.” (ASOF ¶ 113; July 22, 2014 Letter, Pis.’ Ex. 44).

Williamson’s second letter did prompt a response from the Board, but it was'not the response he had hoped for. Before responding, the Board considered a proposed letter to Williamson that was attached to the agenda for its August 19, 2014 meeting. During that meeting, after hearing comments from Williamson and others, the Board unanimously approved •the sending of the pre-drafted response letter. (ASOF ¶¶ 114-15; Pis.’ Ex. V3 (video excerpt of Aug. 19, 2014 Board meeting)). The letter thanked Williamson and CFFC for their request but then stated:

The Invocation portion' of the agenda is an opening prayer presented by members of our faith community. The prayer is delivered during the ceremonial portion of the County’s meeting and typically invokes guidance for the County Commission from the highest spiritual authority, a higher authority which a substantial body of Brevard constituents believe to exist. The invocation is also meant to lend gravity to the occasion, to reflect values long part of the County’s heritage and to acknowledge the place religion holds in the lives of many private citizens in Brevard County.

Your website leads us to understand your organization and its members do not share those beliefs or values which, of course, is your choice under the laws of the United States. However, this Commission chooses to stand by the'tradition of opening its meetings in a manner acknowledging the beliefs of a large segment of its constituents....

(ASOF ¶ 117; Aug. 19, 2014 Letter, Pis.’ Ex. 46).

. The Board’s August 19 letter went on to explain that although Williamson and CFFC members would not be permitted to deliver an invocation at the beginning of Board meetings, they could address the Board for three minutes during the Public Comment portion of .the meetings, which as of that date was held at the end . of each meeting. .(Aug. 19, 2014 Letter (“This Commission respectfully takes issue with the claim that members of your organization are being excluded from presenting their viewpoint at County Commission meetings. You or your Brevard members have the opportunity to speak for three minutes on any subject involving County business during the Public Comment portion of our meeting.”); ASOF ¶ 141); The letter noted that in the past, during the Public Comment portion of the meeting, the Board had “listened to Bible readings; political points of view’of all varieties; and some of our citizens’ sharpest critiques and criticisms of County staff and the County Commission, among other things.” (Aug, 19, 2014 Letter).

During discussion of the issue at the August 19, 2014 meeting, several of the Commissioners commented. Commissioner Anderson stated: “For you to say that Christianity isn’t under attack, I’d like you to look over at Iraq right now and let me know if Christianity is not under attack”; “1 need all the prayer in my life I can get to get through these meetings”; and “I just never understood the concept on—and this is no personal slight to anybody—how you could possibly be offended by something that you do not believe exists. I just never understood that.” (ASOF ¶¶ 177—-79; Pis.’ Ex. V3 (video excerpt of Aug. 19, 2014 Board meeting)). In addressing how speakers are chosen, Commissioner Infantini stated: “My staff and I, we search—I mean I don’t have any specific religion— we will go anywhere to find somebody. No, not anywhere. Okay, correct, not anywhere. Not anywhere. There are certain places.” (ASOF ¶ 182; Pis.’ Ex. V3 (video excerpt of Aug. 19, 2014 Board meeting)). And after seconding the motion to approve the response letter, Commissioner Fisher stated: “I think the Public Comment section ... will give them an opportunity to speak, we are opening the Commission up to that,... when I looked at their.website one of the things I noticed was it wasn’t so much about prayer as it was about trying to separate ... state and church, and if that’s the issue, state and church, then I think the Public Comment section of the agenda is probably the best place anyway.” (Pis.’ Ex. V3 (video excerpt of Aug. 19, 2014 Board meeting)).

In August and September 2014, Plaintiff Gordon emailed Commissioner Infantini, asking that a member of CFFC be allowed to deliver an invocation and stating that he was a Brevard County atheist who was willing to give an invocation. (ASOF ¶ 118; Pis.’ 'Ex. 47).’ Commissioner Infantini did not accept Gordon’s offer.. (ASOF ¶ 118).

On August 21, 20Í4, Brevard County resident Reverend Ann Fuller emailed all five Commissioners, stating that she was “ordained clergy” and a “known humanist in the community” and requesting “an opportunity to give an invocation at an upcoming board meeting.” (Id. H.119). Reverend Fuller explained that she had “served Brevard County humanists as a Community Minister since 2006 affiliated with the [Unitarian Universalist] Church of Bre-vard.” (Id.). That same day, Commissioner Infantini responded in an email that stated in part: “1 am willing to have most anyone offer an invocation. However, by definition, an invocation is seeking guidance from a higher power. Therefore, it would seem that anyone without a ‘higher power’ would lack the capacity to fill that spot..,, Further, 1 welcome ‘freethinkers[,j’' being the only ‘freethinker’ on the board. It just doesn’t seem like the invocation is the correct place for it is all.” (Id. ¶ 120).

On August 28, 2014, the Board received a letter from the Anti-Defamation League objecting to the Board’s decision on the issue of nontheistic invocations and suggesting that the Board’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” Town of Greece. (ASOF ¶ 121; Anti-Defamation League Letter,' Pis.’ Ex. 48). At its November 6, 2014 meeting, the Board unanimously approved a response letter to be sent to the Anti-Defamation League attempting to explain the Board’s practice of excluding nontheists. (ASOF ¶ 122; November 6, 2014 Letter, Pis.’ Ex;. 49). That November 6 response letter stated in part:

[Y]our suggestion to allow, atheists to provide the invocation would, in fact, show hostility toward the faith-based community—as evidenced by the content on social media webpages maintained by [CFFC] and the Freedom from Religion Foundation'.... Therefore, this Board has no desire to follow your suggested action since that action coúld be éasily construed, either overtly or by implication, as evidencing vicarious disdain, scorn or disrespect for the beliefs of our faith-based community.'

... It follows that the Board’s decision to' avoid hostility toward the faith-based community precludes any claim of discrimination. Indeed, if your characterization of secular humanism as a religion is valid, modifying the county’s time-honored pre-meeting tradition by affording a secular humanist the opportunity to recite a secular “prayer” during the faith-based invocation portion of the Board’s agenda could be perceived as [ ] endorsing a specific religion—secular humanism^—in violation of the Establishment Clause because all Board actions at the meeting held following such a secular “prayed” invariably involve an underlying secular purpose. Atheists or secular humanists are still afforded an opportunity to speak their thoughts or supplications during the secular business portion of the agenda under “public comment.”

(ASOF ¶ 124; Nov. 6, 2014 Letter, Pis.’ Ex. 49) (emphasis in original).' Thus, the Board maintained its stance that atheists and Secular Humánists could speak only during the Public Comment period ’ and could not give the opening invocation.

Prior to December 16, 2014, the Public Comment segment of a Board meeting occurred at the end of the meeting. (ASOF ¶¶ 141-42). But on that date, the Board adopted a resolution—Resolution No. 14-219—moving up the first thirty minutes of the Public Comment section so that it occurs after the “consent agenda” section and before the “public hearings” section of each regular Board meeting. (Id. ¶ 142; Mins, of Dec. 16, 2014 Board Meeting, Pis.’ Ex. 33; see also, e.g„ Agenda for July 7, 2015 Board Meeting, Ex. A to Whitten Aff., Doc, 54-2). Under that December 16 resolution, if the Public Comment section is not concluded within thirty minutes, the remainder occurs “at the conclusion of business specified on the regular commission agenda.” (ASOF ¶ 143).

The terms of Commissioners Lewis 'and Nelson ended in November 2014, and at that time new Commissioners Curt Smith and Jim Barfield began their terms. (Id. ¶ 150). On January 26, 2015, the then-legal Director for Americans United for Separation of Church and State sent a letter to all five Commissioners with the subject line “Nontheists’ Delivery of Opening Invocations.” (Id. ¶ 125; Jan. 26, 2015 Letter, Pis.’ Ex. 50). The letter noted that “requests from nontheists have been denied on the ground that belief in a higher power is a precondition to offering the invocation” and stated That “[i]n light of the recent change in the Board’s leadership, we write on behalf of several national legal organizations”—Americans United for Separation of Church and State, the Freedom From Religion Foundation, the ACLU of Florida, and the ACLU Program- on Freedom of Religion and Belief—“to ask that you reconsider this limitation'.” (ASOF ¶¶ 125-26; Jan. 26, 2015 Letter, Pis.’ Ex. 50). The letter requested that Plaintiff Williamson, non-party Reverend Ann Fuller, and Plaintiff Hansel be added to the roster of invocation givers and granted the opportunity to give an opening invocation at a Board meeting. (ASOF ¶ 127; Jan. 26, 2015 Letter, Pis.’ Ex. 50).

Neither the Board nor any individual Commissioner responded to the January 26 letter, (ASOF ¶ 128), and on May 26, 2015, the same four organizations sent another letter -to all five Commissioners, (id. ¶ 129; May 26, 2015 Letter, Pis.’ Ex. 51). In that letter, the organizations requested that one of the five individual Plaintiffs or another representative of .one of the three organizational Plaintiffs ■ be permitted to deliver nontheistic invocations at a Board meeting. (ASOF ¶ 129; May 26, 2015 Letter, Pis.’ Ex. 51). The County Attorney responded to the letter on May 28, 2015, advising that the Board’s next meeting was on July 7, 2015, and that the attorney would present the letter to the Board at that time and seek a response. (ASOF ¶ 130; May 28, 2015 Letter, Pis.’ Ex. 52).

At its July 7, 2015 meeting, the Board “responded to the May 26, 2015 letter by adopting Resolution 2015-101.” (ASOF ¶ 131; Resolution 2015-101, Doc. 53-8 at 34 through 93), Resolution 2015-101, which is attached as an appendix to this Order, is" eleven pages long and consists of five “whereas clauses” followed by thirty-nine numbered paragraphs of “findings” and “conclusions”; it concludes with an amendment to the Board’s Operating Procedures. In the whereas clauses, the Resolution notes: the Board’s' “longstanding tradition of calling for an invocation before commencing a regular meeting at which the secular business of the County will be reviewed' and acted upon”; the Board’s prior responses to requests from atheists, which “identified an informal policy-addressing the issue of pre-meeting .prayer”; that the Board had “not yet enacted a formal policy relating to pre-meeting prayer”; that Board members had received letters requesting “the Board to allow .. ■, atheists, agnostics and secular humanists to give a pre-meeting prayer at a regular Board meeting”; and that “the Board wishes to formalize a policy on invocations that is not hostile to faith-based religions and that does not endorse secular humanism or non-belief over traditional faith-based religions comprised of constituents who believe in God.” (Resolution 2015-101 at 1, Doc. 53-8 at 35).

The “findings” paragraphs in Resolution 2015-101 recount the.County’s tradition of pre-meeting invocations; provide demographic data regarding Brevard County, including that only 34.9% of the County’s total population “claimed to be adherents to any religious faith” in 2010; describe a webpage of . the Freedom From Religion Foundation, with whom CFFC is noted to be affiliated, . that includes “Godless quotes,” as well as a webpage of Americans United for Separation of Church and State that “makes clear -the organization’s calculated goal” to eliminate activity that it considers violative of its “views of what the principles of separation of church and state should be”; examine Secular Humanism; and discuss CFFC’s Facebook page, on which CFFC “strategically seeks to offend faith-based religions in open forums in order to pressure the local government into closing the forum or censoring the content and exposing itself to liability.” (Resolution 2015r-101 at 1-9, Doc. 53-8 at 36-43).

The resolution then states “conclusions” based on the findings, including that: “yielding ... by supplanting traditional ceremonial pre-meeting prayer . .... with an ‘invocation’, by atheists, agnostics or other persons represented or associated with [the Freedom From Religion Foundation] or [Americans United for Separation of Church and State] could be viewed as County hostility toward monotheistic religions whose theology and ..principles currently represent the minority view in Brevard County”; that allowing the requesting organizations to give an invocation and “displace] representatives of the minority faith-based monotheistic community ... could be viewed as ... Board endorsement of Secular Humanist' and Atheist principles” because of “the overwhelmingly secular nature of the Board’s business meeting following the invocation” and “evidence suggesting that the requesting organizations are engaged in nothing more than a carefully orchestrated plan to promote or advance principles of Secular Humanism through the displacement or elimination of ceremonial deism [sic] traditionally provided by monotheistic clerics giving pre-meeting prayers”; that “[a]ll of the organizations seeking the opportunity to provide an invocation have tenets or principles paying deference to science, reason and ethics, which, in most cases, are' the disciplines the Board must consider, understand and utilize when acting upon secular items presented for consideration during the Board’s secular business agenda” and that “deferring consideration or presentation of a secular humanist supplication during the Public Comment portion of the agenda immediately after the consent agenda .., does not deny or unreasonably restrict the opportunity of the requesting parties to present their Secular .Humanist or atheistic invocations, supplications, instruction, petitions for redress of grievances or comments.” (Resolution 2015-101 at 9-10, Doc. 53-8 at 43-44).

The amendment portion of Resolution 2015-101 adds a new section to the Board’s Operating Procedures and provides:

In view of the requests by secular, humanist, atheist and Secular Humanist organizations to provide a secular, Secular Humanist or an atheist invocation, the Board hereby clarifies the intent of the Board’s existing policies allowing Public Comment to include individual or representative comments intended to instruct the' Board; to petition for redress of grievances; to comment upon matters within the control, authority and jurisdiction of the Board; and to comment on matters that are relevant to business of the County Commission, as well as matters upon which the Board has traditionally expressed a position for the betterment of the community interest. Secular invocations and supplications from any organization whose precepts, tenets or principles espouse or promote reason, science, environmental factors, nature or ethics as guiding forces, ideologies, and philosophies that should be observed in the secular business or secular decision making process involving Brevard County employees, elected officials, or decision makers including the Board of County Commissioners, fall within the current policies pertaining to Public Comment and must be placed on the Public Comment section of the secular business agenda. Pre-meeting invocations shall continue to be delivered by persons from the faith-based community in perpetuation of the Board’s tradition for over forty years.

(Resolution 2015-101' at 10-11, Doc. 53-8 at 44-45). Thus, as stipulated by the parties, the resolution “adopted a formal policy that allows the traditional faith-based invocation prior to the beginning of the Board’s secular business agenda and subsequent ‘secular invocations’ during the Public Comment section of that secular agenda.” (ASOF ¶ 133 (further internal quotation omitted)). None of the Plaintiffs has ever delivered a “secular invocation” during the Public Comment segment of a Board meeting. (Id. ¶ 149).

E. This Lawsuit

After the Board passed Resolution 2015-101, Plaintiffs filed this lawsuit. (Compl., Doc. 1). In their six-count Amended Complaint (Doc. 28),. Plaintiffs allege violations of: the Establishment Clause of the First Amendment to the U.S. Constitution (Count I); the Free Exercise Clause of the First Amendment (Count II); the Free Speech Clause of the First Amendment (Count III); the Equal Protection Clause of the Fourteenth Amendment (Count IV); Article I, Section 2 of the Florida Constitution (Count V); and Article I, Section 3 of the Florida Constitution (Count VI). (Doc. 28 at 66-71). The Amended Complaint seeks an injunction, a declaratory judgment, and damages. (Id. at 72-74). However, at mediation the parties resolved the issue of damages. (See Mediation Report, Doc. 39). Plaintiffs’ counsel explaihed during oral argument on thé parties’ cross-motions for summary judgment that at mediation the parties reached a settlement on what the amount of the damages should be if the Plaintiffs prevail on the merits and that’ the Court should allow the parties to file their settlement agreement with the Court if it finds in favor of Plaintiffs. (See Hr’g Tr., Doc. 93, at 32-33). The parties agree that no facts are in dispute, and that this case may be appropriately resolved on their cross-motions. (See Mins., Doc. 69).

II. Analysis

A. Establishment Clause (Count I)

Plaintiffs’ primary claim is under the Establishment Clause of the First Amendment; which provides that “Congress shall make no law respecting an establishment of religion.” U.S. Const. amend. I, cl. 1. This clause; like the other clauses of the First Amendment, applies to the states and their subdivisions via the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); accord Sch. Dist. of Abington Twp. v. Pennsylvania, 374 U.S. 203, 215-16, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963).

Plaintiffs contend that the County’s invocation practice violates the Establishment Clause in three ways: by purposefully discriminating based on religious beliefs; by entangling public officials in religious judgments; and by coercing audience members-to take part in religious exercises. The Qounty, on the other hand, maintains that its invocation practice “conforms to Establishment Clause principles promulgated by the U.S. Supreme Court.” (Dqc. 54 at 1). Each, side asserts that Supreme Court jurisprudence—especially the Court’s 2014 decision in Town of Greece v. Galloway—supports its position.

Marsh v. Chambers and Town of Greece v. Galloway

Although Establishment Clause claims are typically analyzed using one of several formal “tests” established by the Supreme Court for such claims—such as the coercion test, the endorsement test, or the Lemon test—the Supreme Court has declined to apply any of those tests in the context of legislative prayer. But relying on other principles, the Supreme Court has addressed legislative -prayer in two landmark cases—Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), and Town of Greece—and those decisions inform this Court’s analysis here.

At issue in Marsh was the prayer px^ac-tice of the' Nebraska Legislature. That body opened each of its sessions with a prayer given by a chaplain who was paid with public funds and chosen every two years by the Executive Board of the Legislative Council. By the time the case made its way to the Supreme Court, the same Presbyterian minister had served as chaplain for nearly twenty years, Although some of the -minister’s earlier prayers “were often explicitly Christian,” the minister “removed all references to Christ after a 1980 complaint from a Jewish legisla tor.” 463 U.S. at 793 n.14, 103 S.Ct. 3330. The plaintiff—a member of the legislature and a Nebraska taxpayer—brought an Establishment Clause challenge, seeking to enjoin the prayer practice. The district court found no violation of the Establishment Clause from the prayers themselves but concluded that the paying of the chaplain with public funds did violate the clause. Chambers v. Marsh, 504 F.Supp. 585 (D. Neb. 1980). On appeal, the Eighth Circuit applied' the Lemon test, found that the Nebraska practice failed all three prongs of that test, and prohibited Nebraska from continuing to engage in the prayer practice. Chambers v. Marsh, 676 F.2d 228 (8th Cir. 1982).

The Supreme Court reversed, finding— without applying Lemon or any other formal test—that neither the prayers themselves nor the use of public funds to pay the chaplain violated, the Establishment Clause. The Marsh Court noted that “(t]he opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country” and that throughout this country’s history “the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.” 463 U.S. at 786, 103 S.Ct. 3330. After tracing the history of legislative prayer and noting that the First Congress selected a chaplain to open each session with prayer, the. Court concluded that “[t]his unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause-from a practice of prayer similar to that now challenged.” Id. at 791, 103 S.Ct. 3330.

The Marsh Court explained:

In light of the unambiguous and un: broken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the . fabric of our society. To invoke Divine guidance on a public body entrusted with making laws is not, in these circumstances, an ‘establishment’ of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. As Justice Douglas observed [in Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 96 L.Ed. 964 (1952)], “[w]e are a religious people whose institutions presuppose a Supreme Being.”

Id. at 792 (citation omitted). The Court rejected the plaintiffs contention that the Establishment Clause was violated due a minister of only one denomination having been selected for sixteen years. Perceiving no “suggestion that choosing a clergyman of one denomination advances the beliefs of a particular church,” the Court concluded that “[ajbsent proof that the chaplain’s reappointment stemmed from an impermissible motive, ... his long tenure does not in itself conflict with the Establishment Clause.” Id. at 793-94, 103 S.Ct. 3330.

Nor was the Marsh Court troubled by the fact that the prayers given in the Nebraska Legislature were in the Judeo-Christian tradition. The Court explained that “[t]he content of the prayer is not of concern to judges1 where, as here, there is no indication that the prayer opportunity has been exploited to advance any one, or to disparage any other, faith or belief’ and that under those circumstances “it is not for [the Court] to embark on a sensitive evaluation or to parse- the content of a particular prayer.” Id. at 794-95, 103 S.Ct. 3330.

The Supreme Court took up the issue of legislative prayer again in 2014 in Town of Greece. In the town of Greece, New York, for some time prior to 1999 the town board began its monthly board meetings with a moment of silence. But in 1999, a newly elected town supervisor began inviting local clergymen to deliver invocations at the beginnings of meetings. “The prayer was intended to place'town board members in a solemn and deliberative frame of mind, invoke divine guidance in town affairs, and follow a tradition practiced by Congress and dozens of state legislatures.” 134 S.Ct. at 1816. Prayer givers in Greece were unpaid volunteers, and the town “followed an informal method for selecting prayer givers”—a town employee called congregations listed in a .local directory until .she found an available minister for that month’s meeting. Id. And “[t]he town eventually compiled a list of willing ‘board chaplains’ who had accepted invitations and agreed to return in the future.” Id. The town “at no point excluded or denied an opportunity to a would-be prayer giver,” and “[i]ts leaders maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation.” Id. The town did not review the prayers in advance or provide guidance on tone or content; “[t]he town instead left the guest clergy free to compose their own devotions.” Id. From 1999.to 2007, all of the participating ministers were Christian, and “[s]ome of the ministers spoke in a distinctly Christian idio,m.” Id.

The two plaintiffs in Town of Greece— one Jewish, the other an Atheist—attended town board meetings to address issues of local concern, and they took offense to the prayers and the pervasive Christian themes in them. Id. at 1817. After the plaintiffs complained, the town invited a Jewish layman and the chairman of a Baha’i temple to give prayers; additionally, a Wiccan priestess requested and was given a chance to give an invocation. Id. The plaintiffs nevertheless filed suit, alleging that the town’s prayer practice violated the Establishment Clause. They sought not to end the practice but to limit the prayers to “nonsectarian” prayers— “inclusive and ecumenical” prayers referring only to a “generic God” and “not identifiable with any one religion.” Id at 1817 & 1820.

After the district court upheld the practice and the Second Circuit reversed, the Supreme Court reversed the appellate court, finding that the town’s invocation practice passed muster under the Establishment Clause. The Court began by discussing Marsh, noting that “Marsh is sometimes described as ‘carving out an exception’ to the Court’s Establishment Clause jurisprudence, because it sustained legislative prayer without subjecting the practice to ‘any of the formal “tests” that have traditionally structured’ this inquiry.” 134 S.Ct. at 1818 (quoting Marsh, 463 U.S. at 796 & 813, 103 S.Ct. 3330 (dissenting opinion of Brennan, J.)). “The Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause.” Id The Town of Greece Court noted that like Congressional prayer, the practice of local legislative bodies opening their meetings with prayer also “has historical precedent,” id. at 1819, but the Court emphasized' that “Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation” and explained that Marsh “teaches instead that the Establishment Clause must be interpreted by reference to historical practices and understandings,” id. (internal quotation and citation omitted).

The Supreme Court then turned to “whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures.” Id The plaintiffs made two arguments: first, that Marsh does not countenance sectarian prayers, and second, that the town’s practice was coercive because the setting and nature of the town meetings “create social pressures that force nonadherents to remain in the room or even feign participation in order to avoid offending [those who] sponsor the prayer and will vote on matters citizens bring before the board.” Id. at 1820. The Supreme Court rejected both of these contentions.

First, the Court concluded that “insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases.” Id. The-Town of Greece Court explained that Marsh upheld the Nebraska legislative prayers “because our history and tradition have shown that prayer in this limited context could ‘coexis[t] with the principles of disestablishment and religious freedom’ ” rather than “because they espoused only a generic theism.” Id (alteration in original) (quoting Marsh, 463 U.S. at 786, 103 S.Ct. 3330). The Marsh Court did not “imply the rule that prayer violates the Establishment Clause any time it is given in the name of a figure deified by only one faith or creed,” id. at 1821, and “[t]o hold that invocations must be nonseetarian would force the legislatures that sponsor prayers and the courts that are asked to decide these' cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact,” id. at 1822.

The Town of Greece Court emphasized that “[o]ur government is prohibited from prescribing prayers to be recited in our public institutions in order to promote a preferred system of belief or code.of moral behavior” and that “[g]overnment may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.” Id. And “[o]nce it invites prayer into the public sphere;' government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian.” Id. at 1822-23.

Although the Town of Greece Court rejected the notion that legislative prayer must be nonseetarian, it did “not imply that no constraints remain on its content.” Id. at 1823. “The relevant constraint derives from its place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage.” Id. “Prayer that is solemn and respectful in tone, that invites lawmakers . to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function.” Id.

The Town of Greece Court also rejected the Second Circuit’s conclusion that the town violated the Establishment Clause “by inviting a predominantly Christian set of ministers to lead the prayer.” Id. at 1824. Noting that “[t]he town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one,” the Court emphasized that “[s]o long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing.” M.; see also, id. at 1831 (Alito, J., concurring) (“I would view this case very differently if the omission of ... synagogues [from the list of congregations] were intentional.”).

Second, the Town of Qreece Court addressed plaintiffs’ assertions that the prayer practice was unconstitutionally coercive. The plaintiffs asserted “that the public may feel subtle pressure to participate in prayers that violate their beliefs in order' to please the board members from whom they are about to seek a favorable ruling,” id.' at 1825, arguing that prayer in the setting of a town board meeting “differs in fundamental ways from the invocations delivered in Congress and state legislatures, where the public remains segregated from legislative activity and may not address the body except by occasional invitation,” id. at 1824-25. Though no rationale garnered a majority of votes, five justices rejected the plaintiffs’ coercion argument.

Application

In view of this precedent, this Court must- assess Plaintiffs’ Establishment Clause claim. Plaintiffs assert that1 the County’s invocation practice- is distinguishable from the practice approved in Town of Greece, while the County maintains that its practice is consistent with the facts of, and principles established in, that case. As set forth below, the facts of this case indeed distinguish it from Town of Greece, and the overwhelming evidence of purposeful discrimination and “impermissible purpose” here demonstrates the constitutional infirmity in the County’s invocation practice.

1, Purposeful Discrimination

Although the County contends that its invocation practice passes constitutional muster under Town of Greece, the Supreme Court’s opinion in that case cannot be read to condone the deliberate exclusion of citizens who do not believe in a traditional monotheistic religion from eligibility to give opening invocations at County Board meetings. Neither Town of Greece nor any other binding precedent supports the County’s arguments, and none of the County’s asserted justifications for its practice holds water.

The Town of Greece Court upheld an invited-speaker invocation practice that resulted in the prayers being given predominantly by Christians, but in doing so it repeatedly emphasized the inclusiveness of the town’s practice. There was no evidence in that case that the town leaders intended to exclude anyone from participation in the giving of invocations; in fact, there was evidence to the contrary. “The town at no point excluded or' denied an opportunity to a would-be prayer-giver.” 134 S.Ct. at 1816. That invitees were solely Christian was not the product of intentional discrimination but instead due merely to the fact that the speakers were selected from a directory of the town’s religious organizations. The Supreme Court expressly noted a lack of evidence of “an aversion or bias on the part of town leaders against minority faiths,” and, on the contrary, there was evidence of “a policy of nondiscrimination” with regard to who was allowed to give the invocation. Id. at 1824. Similarly, thirty years earlier, the Marsh Court noted lack of evidence of “impermissible motive” in the repeated reappointment of the same chaplain.

And-after Marsh but six years prior to Town of Greece, the Eleventh Circuit—in a decision entirely consistent with Town of Greece—found that an invocation practice violated the Establishment Clause where there was evidence of intentional discrimination in the selection of invocation speakers. In that case, Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir. 2008), two county commissions allowed volunteer religious leaders to offer invocations, at the commissions’ meetings on a rotating basis. The Eleventh Circuit agreed with the district court’s finding that- the invocation practice of one of the two commissions was unconstitutional during two years of the time period at issue because of the way in which speakers were selected, finding that “the selection procedures [in those two years] violated the ‘impermissible motive’ standard of Marsh.” 547 F.3d at 1281. The Felphrey court noted that the “impermissible motive” standard “prohibits intentional discrimination,” id., and during the two years at issue, the employee who selected speakers for one of the commissions “ ‘categorically excluded’ certain faiths from the list of potential invocation speakers,” id. at 1282. The Eleventh Circuit “agree[d] with the district court that the categorical exclusion of certain faiths based- on their beliefs is unconstitutional.” Id.

Marsh, Town of Greece, and Pel-phrey thus make clear that while législa-tive prayer—even sectarian legislative prayer—is, as a general matter, constitutional, intentional discrimination and improper motive can take a prayer practice beyond' what the Establishment Clause permits. Cf. Lund v. Rowan Cty., N.C., 863 F.3d 268, 278 (4th Cir. 2017) (en banc) (“Marsh and Town of Greece, while supportive of legislative prayer, were measured and balanced decisions.... Town of Greece told the inferior federal courts ... to grant local governments leeway in designing a prayer practice that brings the values of religious solemnity and higher ¿leaning to public meetings, but at the same time to recognize that there remain situations that in their totality exceed what Town of Greece identified as permissible bounds.”). The undisputed’ facts of the case at bar establish that the bounds of the clause have been exceeded in Brevard County.

The facts here differ in significant ways from those in Town of Greece. In Greece, “a minister or layperson of any persuasion, including an atheist, could give the invocation.” Id. at 1816. “[A]ny member of the public [wa]s welcome ... to offer an invocation reflecting his or her own convictions.” Id. at 1826. And when the plaintiffs complained about the pervasive Christian themes in the prayers, the town responded by inviting non-Christians to give prayers and granted a Wiccan priestess’s request for an opportunity to give the invocation. Id. at 1817; accord id. at 1829 (Alito, J., concurring) (“[W]hen complaints were received, the town made it clear that it would permit any interested residents, including nonbelievers, to provide an invocation, and the town has never refused a request to offer an invocation.”).

What happens in Brevard County is a far cry from.what happens in the town of Greece. Brevard. County does not allow everyone to give an invocation. Instead, it limits the prayer opportunity to those it “deems capable” of doing so—based on the beliefs of the would-be prayer giver. And after Plaintiffs requested to give an invocation at a Board meeting, the County responded not with an attitude of inclusion but with an express statement and policy of exclusion. Cf. Lund, 863 F.3d at 282 (“By opening its prayer opportunity to all comers, the town [of Greece] cultivated an atmosphere of greater tolerance and inclusion. Rowan County regrettably sent the opposite message.”).

With regard to the County’s “policy,” Resolution 2015-101—the resolution that the Board passed in July 2015 in response to Plaintiffs’ repeated requests to give an invocation—is neither a novel statement of the County’s position with regard to “nonbelievers” giving invocations nor a complete invocation policy. The resolution merely codifies the County’s previously existing practice of denying nontheists an opportunity to give an invocation and relegating them to the Public Comment portion of Board meetings—a practice described in the August 19, 2014 letter (Pis.’ Ex. 46) from the Board to Plaintiff Williamson. And although the resolution concludes with the statement that “Pre-meeting invocations shall continue to be delivered by persons from the faith-based community in perpetuation of the Board’s tradition' for over forty years,” (Resolution 2015-11 at 11), the resolution does not define “faith-based community” or explain how invocation givers are invited or selected. Thus, at issue here is not just Resolution 2015-101 but the County’s actual, overall invocation practice, which is evidenced by the events of this case, the text of the resolution itself, and statements made by the Commissioners in their depositions and elsewhere.

When Plaintiff Williamson wrote to the Board in 2014 requesting an opportunity to give an invocation, the Board eventually responded with a letter that the Commissioners approved at the August 19, 2014 meeting. As earlier noted, that letter stated in part: that the invocation was “an opening prayer presented by members of our faith community”; that the invocation “typically invokes guidance ... from the highest spiritual authority, a higher authority which a substantial body of Bre-vard constituents believe to exist”; that CFFC’s website “leads [the Board] to understand [that CFFC] and its members do not share those beliefs or values” and that the Board “chooses to stand by the tradition of opening its meetings in a manner acknowledging the beliefs of a large segment of its constituents.” (Aug. 19, 2014 Letter, Pis.’ Ex. 46). Two days later, Commissioner Infantini responded to a Humanist who requested to give an invocation with an email stating that “by definition, an invocation is seeking guidance from a higher power” and that therefore “anyone without a ‘higher power’ would lack the capacity to fill that spot.” (ASOE ¶¶ HOBO).

And when letters were sent to the Board in January and May 2015-asking that one of the five individual Plaintiffs or another representative of one of the three organizational Plaintiffs be permitted to give an invocation, the Board ultimately responded by passing Resolution 2015-101 at its July 7, 2015 meeting. That resolution states in one of its “whereas” clauses that “the Board wishes to formalize a policy on invocations that is not hostile to faith-based religions and that does not endorse secular humanism or non-belief over traditional faith-based religions comprised of constituents who believe in God.” (Resolution 2015-101 at 1). The resolution then notes that “[o]n a rotating basis, individual Board members have predominately selected clerics from monotheistic religions and denominations—including Christian, Jewish, and Muslim—to present the invocation,” (id. at 2), and that “[pjrior to the invocation, in recognition of the traditional positive role faith-based monotheistic religions have historically played in the community, the Board ... typically ... offers] the cleric the opportunity to tell the Board, meeting attendees and the viewing audience something about their religious organization,” (id.).

The resolution then purports to describe the “relevant demographics” of the County, stating that “[i]n Brevard County, the faith-based community is a minority component of the larger majority community [sic] represented by the Board” and that data from the Association of Religious Data Archives indicate that in 2010, only 34.9% of the County’s residents claimed to be adherents to any religious faith. (Id.). The “demographics” section of the resolution also notes that the County “is home to a large population of rocket scientists” and a technological university that offers programs in various scientific areas (Id. at 3).

Three pages of Resolution 2015-101 describe .Secular Humanism, noting that the website of. the Council on Secular Humanism describes Secular Humanism as “nonreligious” and “espousing no belief in a realm or [sic] beings imagined to transcend ordinary experience” and that Secular Humanism “is philosophically naturalistic.” (Id at 6). Further, the resolution refers to the requesting organizations as wanting to “conduct a pre-meeting invocation by displacing representatives of the minority, faith-based monotheistic community which has traditionally given the pre-meeting prayer” and expresses the concern that this “displacement]” “could' be viewed as ... Board endorsement of Secular Humanist and Atheist principles.” (Id. at 9-10).

In their depositions, the seven Commissioners who served on the Board during 2008 to 201,6 were asked about whom they would allow to give an invocation and what the purpose of the invocation is. Several testified that they would “say no” to invo-, cation givers of certain religions or belief systems or that they would “have to look into” or “do more research” about whether to allow those potential speakers to give an invocation. For example, several Commissioners would not allow a Wiecan to give an invocation, (see, e.g., Fisher Dep., Doc. 46, at 10; Smith Dep., Doc. 43, at 10), would “want to do more research to understand what that particular religion was about” before allowing it, (Nelson Dep., Doc; 47, at 8), “guess[e]d” she would allow it, (Infantini Dep., Doc. 45, at* 9), or “would probably suggest that they do it during” the- Public Comment period, (Lewis Dep., Doc. 44, at 8). Similar testimony was given regarding whether an adherent to a Native American religion would be permitted to give an invocation. (See, e.g., id. at 9 (would “have to think on” traditional Native American religion); (Barfield Dep., Doc. 48, at 10 (unsure about a Native American shaman); Doc. 43- at 11 (would “talk to them” and “see what they had to say”)). Others were unsure if they would allow a Muslim to.give an invocation, (Doc. 47 at 8;' Doc, 44 at 8), and several would not allow a deist to do so, (Doc. 46 at 11; Doc. 44 at 8-9; Doc. 48 at 10; Doc. 43 at 12).

Several Commissioners expressed doubt about allowing a member of a polytheistic religion—including Hinduism—to give an invocation. (See, e.g., Doc. 46 at 11-12; Doc. 44 at 9). One Commissioner would not consider inviting a member of a polytheistic religion or anybody who does not believe in a monotheistic religion. (Doc. 43 at 12). Another testified that he would not invite an adherent of a polytheistic religion because he “just doesn’t think that’s representative of our community,” yet he inexplicably maintained that he would be willing to invite a Hindu. (Doc. 48 at ■ 10).

One Commissioner testified that she has never invited someone she knew not to be a Christian to give an invocation because “[t]he purpose of the prayer or the invocation was in respect to the Christian community.” (Doc. 44 at 10-11).' That Commissioner explained that she would be willing, to invite a believer in any “God-fearing religion” to give an invocation, (id. at 9), and that the -invocation is “a long-standing' tradition of honoring the Christian community in Brevard County,” (id. at 27).

Another Commissioner stated in his deposition that invocations “are reserved,, for faith-based organizations to introduce their church,” and “[i]t gives them an opportunity to promote their church, established church, recognized church.” (Doc. 42 at 38). Another said that, an invocation is “more for a faith-based monotheological type of situation” where people can speak about whatever they believe. (Doc. 48 at 19). Another explained, that he believes in Resolution 2015-101 because he believes “that the long'history in this country gives people of the faith-based community the ability to speak and speak freely” and that “the Constitution says we have freedom of religion, not from religion,” (Doe. 43 at 21), That same Commissioner explained, “[W]e don’t set time aside for non faith-based people to speak during the invocation,” (id. at 24), and the Board “endorses faith-based religions,” (id. at 27). Additionally, that Commissioner ■ acknowledged saying to a radio station that “[t]he invocation is for worshiping the God that created us,” by which he means “[t]he one , and only true God”—“[t]he God of the Bible.” (Id. at 37; see also Pis.’ Ex. V13 (audio recording of radio interview)). He also acknowledged being quoted as saying that “[i]f they were a religion and they honored the word of God” set forth in “[t]he Holy Bible” “they would have every opportunity to speak to us during that period that we set aside to honor God.” (Doc. 43 at 38).

This overwhelming, undisputed record evidence clearly demonstrates that the County’s invocation practice runs afoul of the principles set forth in Marsh, Town of Greece, and Pelphrey. It reveals “impermissible motive” in the selection of invocation givers, Marsh, 463 U.S. at 793, 103 S.Ct. 3330, and reflects a “policy of [ ]discrimination,” Town of Greece, 134 S.Ct. at 1824, as well as “purposeful discrimination” and “categorical[ ] exclusion” of certain potential invocation givers, Pelphrey, 547 F.3d at 1281 & 1282. It also demonstrates that through its practice, the County has strayed from invocations’ traditional purpose.-

The County cannot and does not deny that it has imposed a categorical ban on Plaintiffs and other nontheiSts as givers of opening invocations at its Board meetings. Nevertheless, the County describes its invocation practice as “purposefully, inclusive” rather than exclusive, (see Doc. 59 at 7-8 & 20), and it attempts to'justify its practice on several bases. None of these asserted 'justifications, however, withstands analysis. .

“Invocations Must Invoke A Higher Power”

The County attempts to defend its exclusion of Plaintiffs as invocation-givers by imposing a “theism” requirement for invocations. As is apparent from evidence already discussed, the County maintains that an invocation must be “religious” and “invoke a higher power” and that because the Plaintiffs are not “religious” and do not believe in a higher power they are “not qualified” to give, an opening invocation at Board meetings. The Court rejects this asserted justification or the County’s policy and practice of exclusion.

As Plaintiffs note, the Supreme Court and other courts have recognized atheism and Humanism as religions entitled to First Amendment protection. See, e.g., Tor