4th Circuit OKs Prayer at N.C. County Meetings

(CN) — Opening prayer will resume at Rowan County, N.C., commissioners' meetings after the Fourth Circuit ruled 2-1 Monday that the invocation does not coerce participation by attendees.

The American Civil Liberties Union quickly responded, saying it would challenge the majority's decision by asking for an en banc review by all 15 members of the Richmond, Va.-based appeals court. Eight judges must agree to take the case before the full Fourth Circuit hears it.

"Rowan County residents should be able to attend local government meetings without being coerced to participate in a sectarian prayer or worry that the commissioners may discriminate against them if they do not," Chris Brook, legal director for the ACLU of North Carolina, said in a statement.

The ACLU, which represented three county residents who challenged the prayer policy, won a first round in 2013 when North Carolina U.S. District Judge James Beaty ruled the prayers violated the First Amendment's Establishment Clause, which bans government endorsement of a single religion.

But Mat Staver, founder and chairman of Liberty Counsel, which assisted in representing the commissioners, said in a statement that "the First Amendment affirms the freedom to open public meetings with prayer."

"The Supreme Court long ago ruled that prayer before state legislative bodies is constitutional because such practice predates the First Amendment. The Supreme Court recently ruled that there is no constitutional difference between state legislative bodies and local governing bodies," Staver said.

The case is the first time a federal appeals court has reviewed a government prayer policy since the U.S. Supreme Court ruled in 2014 that the invocation practice of Greece, N.Y., officials was constitutional.

In Greece, town officials invited religious leaders to give prayers for the benefit of board members at the start of meetings. People of different religious traditions, including members of the Jewish, Baha'i, and Wiccan faiths, delivered those invocations, and the board members themselves never directed residents to participate in the prayers.

In Rowan County, the officials themselves deliver the prayers, meaning citizens with different beliefs have no opportunity to do so, and the commissioners instruct those present to stand and join in the prayer, leading many residents to feel coerced and pressured into doing so.

Beaty ruled three years ago that the Rowan County case differed from Greece because the commissioners themselves, not visiting ministers or audience members, were giving the prayers. Those prayers were Christian-oriented about 97 percent of the time between 2007 and 2013.

But in his majority Fourth Circuit opinion issued Monday, Judge Steven 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 board's legislative prayer practice falls within our recognized tradition and does not coerce participation by nonadherents. It is therefore constitutional," Agee wrote. "The district court erred in concluding to the contrary. Accordingly, the judgment of the district court is reversed and remanded with directions to dismiss the complaint."

Agee was joined in the majority by Judge Dennis Shedd.

Judge Harvie Wilkinson III dissented, finding that "the message actually delivered in this case was not one of welcome but of exclusion."

"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," Wilkinson wrote, citing the 2014 Supreme Court ruling.

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