Rowan could be next legal battleground over public prayer

Published 12:00 am Saturday, February 18, 2012

By Scott Jenkins
The U.S. Supreme Court’s decision to let stand a ruling that Forsyth County commissioners’ opening prayers are unconstitutional is rippling across the state as other governments examine their own practices.
And it could be setting up a legal showdown in Rowan County.
The nation’s highest court declined in January to hear an appeal to the 4th Circuit Court of Appeals’ 2011 ruling that prayers to open Forsyth County board meetings were too overwhelmingly Christian.
That decision ended a five-year court battle between Forsyth commissioners and critics of the board’s prayer policies. It led the American Civil Liberties Union to call on other government bodies to adhere to the ruling and end sectarian prayer.
Rowan was among 25 to 30 government bodies across North Carolina to get a letter recently from the state chapter of the ACLU citing residents’ complaints about prayers that open their meetings.
Last week, a number of Rowan commissioners said they won’t alter the board’s policy or ask anyone to tone down their beliefs when giving the invocation to start meetings. Commissioner Jim Sides even said he’s willing to go to jail over it.
Katherine Parker, the state ACLU’s legal director, said Friday that most of the governments contacted are working with their county and city attorneys “to make sure they’re in compliance with the law.”
“The Rowan County Board of Commissioners is the first one out of 25 or 30 saying that they’re going to completely disregard the law,” Parker said.
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The Forsyth County prayer fight stretches back to at least 2006.
According to reporting by the Winston-Salem Journal, the ACLU asked commissioners in October of that year to stop opening meetings with prayer “invoking the name of Jesus Christ.” and adopt a policy banning sectarian prayers.
In early 2007, three Forsyth residents represented by attorneys for the ACLU and Americans United for Separation of Church and State filed a federal lawsuit seeking to stop sectarian prayer at county government meetings.
Over the next couple of years, the commissioners agreed to accept free legal defense from the conservative-Christian Alliance Defense Fund and cash from the N.C. Partnership for Religious Liberty to help pay the ACLU’s legal fees if the county eventually lost the case.
Beginning in late 2009, the county lost successive court rulings and appeals in federal and district courts, then in the 4th Circuit Court, where the majority opinion said that even though the county’s policy was to invite local religious leaders to pray “according to the dictates of their faith” but to avoid proselytizing or disparaging other faiths, the prayers were still unconstitutional because they “referred to Jesus, Jesus Christ, Christ, or Savior with overwhelming frequency.”
When the Supreme Court declined to hear an appeal to that ruling, it essentially let stand the court’s landmark 1983 decision — in a case involving the Nebraska state legislature and its paid chaplain — that there’s nothing wrong with opening governments meeting in prayer, as long as the prayer doesn’t favor one religion over another.
Parker, the ACLU legal director, puts it this way:
“A reference to a general god is considered nonsectarian. What’s sectarian is when someone references a deity in whom only a particular religion believes.”
Parker said with the Forsyth County ruling, she expects the ACLU will hear more complaints about sectarian prayer. But she’s already hearing about governments statewide reviewing their own policies to head off those complaints.
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In Kannapolis, city officials have been aware of the Forsyth case for some time, City Manager Mike Legg said, and the issue “sort of came to a head with Rowan County receiving the letter.”
While Kannapolis has no specific policy, it does have a longstanding tradition of prayer to open meetings. Council members pray on a rotating basis. Legg said he’s never heard a complaint from a resident and doesn’t think he would, “but it’s pretty clear that’s secondary in the end to what the courts say.”
Legg said Wally Safrit, the city’s attorney, is studying the prayer issue now. He said city officials will likely “explore alternatives” and bring an opinion to the council at an upcoming meeting.
“We’re not waiting for pressure from any outside groups,” Legg said. “We’ll take it up sooner rather than later.”
He added, “If it’s the law of the land, which it sounds like it is, we won’t be the only ones having to sort though that issue.”
Richard Koch, attorney for Cabarrus County, said that while Cabarrus officials are evaluating the 4th Circuit Court’s ruling, they’re doing it “in view of other case law.” The answer may not be as “black and white” as the ACLU argues, he said.
“We certainly need to be in compliance with the law. … I am not conceding we’re not at this point,” he said. “That decision is subject to interpretation. It’s a very complex area of law and the decisions from the different circuits aren’t all uniform.”
Koch said Cabarrus commissioners believe their handling of prayer is inclusive. The county invites local clergy to give the invocation at meetings and while most of those who do are Christian, he recalls a rabbi praying to begin one meeting.
Cabarrus commissioners have received no complaints, Koch said, and unless they determine it should be done differently, they’ll continue inviting clergy to pray at meetings, such as the one scheduled to pray Monday.
The issue hasn’t yet crossed the radars of some other local governments.
Doug Paris, interim city manager in Salisbury, said the question hasn’t been raised among city officials.
“I’ll check in with our city attorney,” Paris said. “We haven’t talked about it.”
As in Kannapolis, Salisbury City Council members take turns praying to open their meetings. Paris said the content of the invocation “depends on who gives the prayer.”
Paris points out the city’s efforts to promote diversity, including inviting leaders of different faiths to pray at the annual Mayor’s Spirit Luncheon.
“One of our values is to be inclusive as a city,” he said.
To groups like the ACLU, though, diversity may be no substitute for nonsectarianism, especially at meetings where government policy is made.
“If a Hindu gives a prayer and prays to Vishnu, that’s a sectarian prayer,” said Parker, the ACLU legal director.
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Local governments aren’t the only ones facing questions over how they incorporate prayer. Earlier this month, the ACLU sent a letter to the N.C. General Assembly contending prayer during sessions violates the First Amendment.
Responding to that letter, which was also based on the 4th Circuit’s ruling in the Forsyth County case, House Speaker Thom Tillis accused the ACLU of harboring a “radical, far-left agenda that is out of touch with most North Carolinians.”
And he argued the “same Constitution that prohibits government sponsored religion also protects the rights of individuals to exercise their faiths as they so choose.”
The battle goes beyond North Carolina. The Supreme Court last month also declined to hear a similar appeal of a 3rd Circuit Court of Appeals ruling which found a Delaware school board’s prayers unconstitutional.
Similar skirmishes are erupting all over the nation. But for this state, Rowan County — where the words “In God We Trust” are affixed to the county administration building — could become ground zero in the fight over prayer.
Last week, county attorney Jay Dees told commissioners in an email that while he has “appreciated our board’s general stance on this issue over the past several years … the primary legal concern now is that our (board) takes an oath to uphold the Constitution and laws of the United States and our state.”
He said the board’s practice of opening meetings with sectarian prayer conflicts with federal and state law as interpreted by the 4th Circuit Court in the Forsyth Case and asked for feedback from commissioners.
Most said the board should continue as it has, with members taking turns giving the invocation at meetings. Commissioner Jim Sides penned an even more defiant response.
“I will continue to pray in JESUS name,” Sides wrote. “Chairman (Chad) Mitchell, I volunteer to be the first to go to jail for this cause … and if you will go my bail in time for the next meeting, I will go again!”
Parker, the state ACLU’s legal director, said there’s a very real possibility that would result in court action. She said the group has gotten a half dozen complaints from three or four people in Rowan County since 2009 — more than it’s gotten for any other local government in that span — and some of them are willing to serve as plaintiffs in a lawsuit.
She pointed out that Forsyth County, when it lost, was ordered to pay more than $200,000 for the ACLU’s legal fees.
“It’s not just a matter of somebody going to jail,” she said. “I think if I were a community member in Rowan County, I would be concerned about my county commissioners swearing to uphold the law in the constitution, then refusing to do it.”
Mitchell said Friday he believes the board will “talk about a potential policy” at some point. For now, he said, commissioners will continue taking turns opening their meetings with prayer.
“At the moment, they’ll give a prayer the way they see fit,” he said.
If he remembers the order correctly, Mitchell said, the chairman is scheduled to give the invocation at Monday’s meeting. He said he plans to pray “the way I always have” — in Jesus’ name.
Salisbury Post reporter Karissa Minn and the Associated Press contributed.