RICHMOND, Va. (CN) - The Fourth Circuit granted en banc review to the question of whether lawmaker-led prayers before a county commission meeting are constitutional.
In filing the case, Lund v. Rowan County, North Carolina, the American Civil Liberties Union argued the brief prayer said before meetings of the county commission violates the First Amendment's protection of religious liberty.
"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," said Chris Brook, the North Carolina ACLU's legal director, as the case moved from initial ruling to appeal.
In May 2015, U.S. District Judge James Beaty Jr. ruled Rowan County's prayer practices at the beginning of each board of commissioners meetings violated the Establishment Clause of the First Amendment.
On Sept. 19, 2016, a divided three-judge panel overturned Beaty's ruling and remanded the case for further proceedings.
Writing for the majority, U.S. Circuit Judge G. Steven Agee said the district court had erred because it treated "the Supreme Court's jurisprudential silence on lawmaker-led prayer as conclusively excluding legislators from being permissible prayer-givers to their own legislative bodies.
"That conclusion is not supportable," Agee said.
The judge focused at length on the Supreme Court's ruling in Town of Greece vs. Galloway. "Nowhere did the Court say anything that could reasonably be construed as a requirement that outside or retained clergy are the only constitutionally permissible givers of legislative prayer.
"Quite the opposite, Town of Greece specifically directs our focus to what has been done in 'Congress and the state legislatures' without any limitation regarding the officiant," Agee added.
U.S. Circuit Judge Dennis Shedd concurred.
U.S. Circuit Judge J. Harvie Wilkinson wrote a dissenting opinion.
"This case is more than a factual wrinkle of Town of Greece v. Galloway. It is a conceptual world apart," Wilkinson wrote.
"Rowan County's prayer practice featured invocations week after week, month after month, year after year, with the same sectarian references," he wrote. "To be sure, Town of Greece ruled that sectarian prayer is not by itself unconstitutional. ... But the issue before us turns on more than just prayer content, the primary concern in Town of Greece.
"Whereas guest ministers led prayers in that case, it was public officials who exclusively delivered the invocations in Rowan County," Wilkinson said. "Those prayers served to open a meeting of our most basic unit of government, a local board of commissioners that passes laws affecting citizens in the most daily aspects of their lives. 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," the dissenter wrote.
Wilkinson concluded: "A ruling for the county bears unfortunate consequences for American pluralism, for a nation whose very penny envisions one out of many, a nation whose surpassing orthodoxy belongs in its constitutional respect for all beliefs and faiths, a nation which enshrined in the First and Fourteenth Amendments the conviction that diversity in all of its dimensions is our abiding strength."
The ACLU immediately petitioned for en banc review, which the Fourth Circuit granted, without elaboration, on Monday.
The case is tentatively scheduled to be heard January 24-26, 2017.