In a bizarre decision yesterday, the 4th Circuit Court of Appeals ruled 2-1 that the Rowan County Board of Commissioners in North Carolina could open up their meetings with prayer led by the commissioners themselves. Prayers that are virtually all to Jesus.
It’s a slap in the face to anyone who thought Greece v. Galloway meant the prayer process would be open to anyone, including atheists, Satanists, and other non-Christians.
The controversy began in 2012, when the ACLU of North Carolina warned the Commissioners about the problem with their prayers. The letter was ignored. So the ACLU filed a lawsuit to stop the Christian prayers in March of 2013:
From November 5, 2007, through the present, nearly every Board meeting has featured a sectarian invocation. Specifically, 139 of 143 Board meetings opened with sectarian prayer during that time period. Put another way, 97% of Board meetings in the past five-and-a-half years have featured sectarian prayer.
Those sectarian prayers, like the Commissioners themselves, promoted Christianity.
So it wasn’t surprising when, in 2015, U.S. District Judge James Beaty Jr. ruled that the Commissioners violated the law and continued to do so every time they uttered a prayer to Jesus:
In the present matter, the Commissioners themselves — and only the Commissioners — delivered the prayers at the Board’s meetings. In contrast, the Town of Greece invited volunteers from a variety of religious faiths to provide the prayers.
Additionally, because of the prayer practice’s exclusive nature, that is, being delivered solely by the Commissioners, the prayer practice cannot be said to be nondiscriminatory. The need for the prayer policy to be nondiscriminatory was one of the characteristics key to the constitutionality of the Town of Greece’s practice…
… That some day a believer in a minority faith could be elected does not remedy that until then, minority faiths have no means of being recognized.
That last bit is huge. The Commissioners argued that they weren’t breaking the law because anyone in their position could deliver an invocation… it just so happened that they all happened to be Christian. It would be different, by the Commissioners’ logic, if pastors were invited to give the prayers. They weren’t, so everything was okay… Even though it wasn’t.
Beaty’s ruling said their argument made no sense. The prayers effectively promoted Christianity even if it was just a happy, totally-predictable coincidence.
Last July, the Commissioners voted unanimously to appeal the ruling — putting a lot of taxpayer money at stake — and that’s the decision that was finally announced yesterday. Two judges voted to overturn the lower court’s decision, reversing the ruling and effectively saying the legislative prayers were okay.
A divided panel of the 4th Circuit Court of Appeals overturned the decision by a Greensboro federal judge and ruled that the mostly Christian invocation county leaders used to open their sessions did not violate the separation of church and state.
[Judges Steven] Agee and [Dennis] Shedd ruled, however, that the commissioners’ role was immaterial. In his majority opinion, Agee cited “a clear line of precedent not only upholding the practice of legislative prayer but acknowledging the ways in which it can bring together citizens of all backgrounds and encourage them to participate in the workings of their government.”
The dissent, written by an otherwise conservative justice, Harvie Wilkinson, was brutal — and exactly right:
The prayers, bordering at times on exhortation or proselytization, were uniformly sectarian, referencing one and only one faith though law by definition binds us all.
I have seen nothing like it. This combination of legislators as the sole prayer-givers, official invitation for audience participation, consistently sectarian prayers referencing but a single faith, and the intimacy of a local governmental setting exceeds even a broad reading of Town of Greece.
No one disputes that localities enjoy considerable latitude in opening their meetings with invocations and prayers. But the legislative prayer practice here pushes every envelope.
And what about the argument that voters can just elect non-Christians if they want to hear non-Christian prayers? Wilkinson shot that down as well:
While a small group of legislators can diversify their appointment of prayer-givers at will, it may be more difficult to expect voters to elect representatives of minority religious faiths… Failure to pray in the name of the prevailing faith risks becoming a campaign issue or a tacit political debit, which in turn deters those of minority faiths from seeking office. It should not be so.
In short, if this ruling were adopted everywhere, it would result in local leaders ending inclusive invocation practices — bye bye, Satanists — and adopting a policy that lets the almost-entirely-Christian group of legislators deliver their own Christian prayers at every meeting. It would be a wrecking ball against the wall of separation.
Here’s the good news: The ACLU says it will ask the entire 4th Circuit to do an en banc review, reconsidering the decision as a full court. Because Wilkinson has a lot of clout, there’s a good change enough of the judges will say yes to rehear the case. Depending on how that goes, the U.S. Supreme Court would be the last option.
Alliance Defending Freedom, the conservative legal group defending the County, is obviously pleased with the decision.
“All Americans, including public servants, should have the freedom to pray without being censored, just as the Supreme Court found less than two years ago,” said ADF Senior Counsel Brett Harvey. “The First Amendment affirms the liberty of Americans to pray according to their consciences before public meetings. For that reason, the 4th Circuit rightly upheld Rowan County’s prayer policy, which is clearly constitutional.”
All Americans can already pray without being censored. But a government meeting isn’t the place to deliver sermons. The fact of the matter is that atheists, Satanists, and several other non-Christian groups will never have their beliefs promoted or mentioned during the invocation by the all-Christian Rowan County government. ADF refuses to admit that’s a problem.
Let’s hope the rest of the 4th Circuit understands this issue better than those two rogue judges.
(via Religion Clause. Large portions of this article were published earlier)