Here’s some wonderful news from the 4th Circuit Court of Appeals: The entire slate of judges will rehear a case involving the Rowan County (North Carolina) Board of Commissioners’ prayer policy in what’s known as an en banc review. It’s a chance to make up for a disastrous decision from September that allowed county officials to deliver Christian prayers — and only Christian prayers — at their meetings.
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 in March of 2013 to stop what had essentially become a mini church service:
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. He said that what they were doing violated the law even in the wake of the Supreme Court decision in Greece v. Galloway which permitted sectarian prayers as long as the door was open to everyone.
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 was 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 only Christian 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 in September. Two judges voted to overturn the lower court’s decision, 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 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 could 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 atheists — 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.
Alliance Defending Freedom, the conservative legal group defending the County, was 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.”
But the ACLU did have another option. They could ask the entire 4th Circuit to do an en banc review, reconsidering the decision as a full court. It also serves as a check on those two judges; while they were a majority in a group of three, they may very well be outnumbered in a full court.
And that’s why today’s news — that the entire court would rehear the case — is very welcome. It erases the ruling from September and gives the ACLU another chance at victory.
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. That’s why the judges need to step in and fix this.
(Screenshot via WSOC-TV. Thanks to Malinda for the link. Large portions of this article were published earlier)