RICHMOND, Va. (CN) – When does tradition become coercion? That was the question the Fourth Circuit was asked to consider Wednesday as it grappled with a controversy over a prayer recited before a county commission meeting.
The case came to the appellate court from Rowan County, North Carolina, where the board of county commissioners routinely opens it meetings with a prayer.
The American Civil Liberties Union of North Carolina sued the commission in 2013 behalf of three local residents who said the prayers overwhelmingly favored one set of religious beliefs over others and violated their rights under the First and Fourteenth Amendments.
The complaint said that four out of five prayers offered before the meetings — a total of 139 out 143 — were specific to a single religion: Christianity.
This, the ACLU says, flies in the face of the Fourth Circuit’s 2011 ruling in Joyner, et al. v. Forsyth County Board of Commissioners, in which the court said if local board decide to open meetings with invocations, the prayers may not indicate a preference for one faith.
The ACLU says that decision inspired 15 other local governments to voluntarily change their policies for opening their meetings. Only Rowan County decided to go another way, the lawsuit says.
On Wednesday, both sides got to make their case to an en banc panel of the Fourth Circuit.
“The crux of the case is that this impermissibly coerces Rowan County citizens to participate in this prayer practice,” said Chris Brook, legal director of the North Carolina ACLU.
But Allyson Newton Ho, of Morgan, Lewis & Bockius LLP, who is representing the county, said the prayer that takes place before the commissions meetings is rooted in tradition and should be permissible.
U.S. Circuit Judge J. Harvie Wilkinson III asked Ho why meeting attendees wouldn’t come to believe, based on the opening prayer, that the board saw Christianity as the dominant or preferred religion.
U.S. Circuit Judge Diana Gibbon Motz chimed in, noting, “legislative prayer is more coercive than a minister or rabbi’s prayer, because the legislator is making a decision for the people who are there.”
“It’s a psychological matter,” Motz said.
But Ho responded by saying, “I don’t believe the prayers are proselytizing.”
Excerpts of some of the prayers were read aloud by judges after Ho’s statement.
Among them were statements we open our heart to those messages,” and “the decisions we make here will honor and please you, Jesus Christ” and “there’s only one way to salvation, and that is Jesus Christ.”
Afterwards, Motz asked Ho whether she believed a county officer could begin a meeting with the “Apostle’s Creed,” a Christian affirmation of the belief in God as the father; Jesus, his son; and in the Holy Spirit.
Wilkinson said there likely would be no controversy with the Rowan County commission acknowledged other religions by reciting their prayers with some regularity, but that that is not the case here.
“It bothers me that praying in the prevailing faith would be a test of public office,” Wilkinson said. “It would go against the direction of our country, which is one with more religious diversity.”
“For members of a minority faith who seek public office, I could see it as a deterrent,” he said.
U.S Circuit Judge James Wynn Jr. countered Ho’s notion that tradition is a basis for continuing Christian prayer before meetings.
Wynn asserted that if people just mindlessly carried on tradition without question, slavery would still be in existence.
“If a minister were performing a sermon at church, he would be preaching to the choir,” Wynn said. “In a different setting, you need to focus on intent and what you are portraying.”
The judges ended the hearing without indicating when they will render a decision.