After Town of Greece was decided, I was surprised that Chesterfield County, Virginia was sticking with their policy of only inviting members of monotheistic religions to offer legislative prayers. In a series of back-and-forths with Kevin Walsh, I came to the conclusion that Town of Greece imposes something of a non-discrimination principle, whereby governments cannot pick and choose the religions that offer prayers.

Via Kevin, I see that Chesterfield has abandoned this policy. Instead, the Supervisors of the County Board will not offer invocations themselves, or preside over a moment of silence.

The Board of Supervisors has changed its legislative prayer policy. Starting next year, the supervisors will rotate among themselves in delivering an invocation or presiding over a moment of silence. This is a shift away from a practice of inviting ordained clergy of monotheistic religions, which some contended was unconstitutional under a perceived non-discrimination requirement in the Supreme Court’s decision in Town of Greece v. Galloway.

The shift is prudent even if not constitutionally required, and it may be that the supervisors were closer in thinking to Josh Blackman’s assessment of Town of Greece than to mine. The decision may also reflect the reality that the County would be on the hook for plaintiffs’ attorneys’ fees and costs if the County litigated and lost, but the County could not recover it own fees and costs if the County litigated and won.

It would seem that the supervisors will now be acting as the Chaplain did in Marsh v. Chambers. Though this policy would be okay under Greece’s non-discrimination policy, I suppose there is an open question if the supervisors only offer overtly-Christian prayers. This may run afoul of Town of Greece. Recall the chaplain in Marsh offered ecumenical prayers, though the relevance of this fact is somewhat unclear in Justice Kennedy’s majority opinion.