Federal appeals court calls Rowan County officials prayer unconstitutional

Case could be headed to the U.S. Supreme Court

RICHMOND, Va. — A divided federal appeals court said Rowan County, approximately 40 miles northeast of Charlotte, violated the U.S. Constitution by limiting delivery of prayer at the beginning of their meetings to members of the county commission and asking audience members to participate.Friday’s 10-5 decision by the 4th U.S. Circuit Court of Appeals in Richmond, Va., overturned a ruling by a three-judge panel of the same court that upheld the practice. The case is likely headed to the U.S. Supreme Court, where Justice Neil Gorsuch recently filled the ninth seat.”Ninety percent of folks here are appalled so they want to go forward to the Supreme Court,” said N.C. Rep. Carl Ford (R-Rowan) in an interview on Monday. “No one was told to pray. These prayers were 30 seconds or less of asking for God’s guidance. Churches and other groups, inside and outside the state, have offered to step up and donate to help fight this.”Three residents had challenged the Rowan County Board of Commissioners’ practice of opening meetings with prayers composed by members of the board of County Commissioners, and asking those in attendance to stand and pray together. The plaintiffs said they felt pressured to pray and that their business before the county commissioners could be dismissed if they did not. The American Civil Liberties Union brought the suit on behalf of the plaintiffs, who locals say were recruited by the ACLU specifically for this case.”I’ve never missed a county commissioners meeting in six years and I’ve never seen any of those folks at any meeting,” said Ford.Still, the judges said that because 97 percent of 143 prayers in a recent five-and-a-half-year period were Christian, mentioning “Jesus” or “Christ,” the elected officials “identify the government with Christianity and risked conveying to citizens of minority faiths a message of exclusion,” wrote Circuit Judge J. Harvie Wilkinson in the majority opinion.Wilkinson also said the prayers occasionally asked God for others’ acceptance of Jesus Christ as savior, crossing into what he said was proselytizing Christianity by a government official.Wilkinson said it was not “inherently unconstitutional” for lawmakers to deliver invocations, but Rowan County violated the First Amendment’s Establishment Clause by focusing on a single, preferred faith.”Indeed, if elected representatives invite their constituents to participate in prayers invoking a single faith for meeting upon meeting, year after year, it is difficult to imagine constitutional limits to sectarian prayer practice,” he wrote.Wilkinson distinguished prior Supreme Court decisions letting Nebraska’s legislature and the upstate New York town of Greece open sessions with prayer led by either hired or invited clergy, rather than elected officials.Circuit Judge Paul Niemeyer dissented, saying the majority effectively sought “to outlaw most prayer given in governmental assemblies, even though such prayer has always been an important part of the fabric of our democracy and civic life.”In a separate dissent, Circuit Judge G. Steven Agee said the ruling goes against established precendent.”Lawmaker-led prayer finds contemporary validation in the federal government as well,” he wrote. “Both houses of Congress allow members to deliver an opening invocation. The congressional record is replete with examples of legislators commencing legislative business with a prayer.”The Rowan County Commissioners said its policy does not violate the Establishment Clause of the Constitution because those in attendance were never required to pray and were free to remain seated or leave the room until official business began. They also said that the content of the prayers was never edited or reviewed but determined solely by those delivering the prayers.Greg Edds, the Rowan County board chairman, said in an email: “While the decision is certainly disappointing, it is not surprising. [We] will be reviewing it over the next several weeks with our legal team to decide where we go from here.”First Liberty Institute, a nonprofit group that works to defend religious liberties, is representing the county commissioners in the case. They are also representing Jackson County, Michigan, against a similar lawsuit.”While we are disappointed in the 4th Circuit’s decision to ban invocations before legislative meetings contrary to Supreme Court precedent, we are encouraged that the split in the vote on the 4th Circuit demonstrates the need for the Supreme Court review on this issue,” said Mike Berry, deputy general counsel for First Liberty Institute.If Rowan County decides to take the case to Washington, it could appear before the high court as early as October 2017.