Published 12:00 am Saturday, March 3, 2012

By Karissa Minn
kminn@salisburypost.com
SALISBURY — Commissioner Jon Barber says he’s up next to give the invocation at Monday’s board meeting, and he won’t change the way he prays.
“My feet are firmly planted,” he said Wednesday. “This has been a tradition for the board, for our citizens and for our country. I’m not going to change that until I have to.”
The American Civil Liberties Union (ACLU) of North Carolina has asked Rowan County commissioners to stop opening meetings with sectarian prayer, to comply with a recent court ruling in Forsyth County.
The organization wants a response by Monday.
All of the current board members have prayed “in Jesus’ name,” and many have made other religion-specific references.
With the exception of Raymond Coltrain, the commissioners agree that they will continue to pray the way they choose — if necessary, using taxpayer money to defend the practice.
Chairman Chad Mitchell said he doesn’t think it will come to that, because he’s “pretty confident” the county will find a group that will cover any legal costs, fees or fines.
“I’ll be in favor of fighting this, with the knowledge that I believe it can be done without one cent of tax dollars,” he said. “Personally, if it takes public money, I’m still willing to fight it, because it’s not just fighting for these five people’s rights but for all the citizens of Rowan County.”
Vice Chairman Carl Ford said most of the people he’s heard from “said that wasn’t a problem,” and some even have offered to donate money toward the legal costs.
Commissioner Jim Sides, typically a staunch opponent of tax increases, said he “would be likely to be one that would vote to raise taxes for this issue.”
But Ford and Mitchell said they don’t think the costs would be high enough to require a tax hike.
The Alliance Defense Fund provided legal services to Forsyth County for free. Another nonprofit group offered to cover the $200,000 in legal fees Forsyth was ordered to pay when it lost.
Mitchell gave an invocation “in Jesus’ name” at the board’s last regular meeting on Feb. 20 — one week after receiving the ACLU letter.
Coltrain has said he is willing to change his wording to comply with the law, and God knows his intent during prayer. He said Wednesday he is “not going to fight the Supreme Court of the United States.”
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County Attorney Jay Dees said Thursday that he has advised the board of the court ruling, but unless it becomes a legal issue in Rowan, it’s up to the commissioners to decide what to do.
The U.S. Fourth Circuit Court of Appeals said it agreed with court rulings “that in order to survive constitutional scrutiny, invocations must consist of the type of nonsectarian prayers that … seek to unite rather than divide.”
In the part of the ruling that directly addresses the Forsyth prayers, the court said the county’s policy is neutral on its face. But in practice, because most of the prayers were Christian, it violated the First Amendment by effectively advancing one religion.
The First Amendment of the U.S. Constitution begins, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Dees said he sees legitimate reasons to argue, as the ACLU does, that the ruling applies to Rowan County and bans any sectarian prayer by commissioners at their meetings.
“But there are legitimate reasons, in my mind, why people would think that the holding in the Fourth Circuit case in Forsyth County is limited in its application and reach,” he said. “That is yet to be resolved.”
Ford said Wednesday he thinks the Forsyth County case is “totally different,” because that board invited religious leaders to give its invocations.
Mitchell agreed, saying Rowan commissioners are exercising their own First Amendment rights when they take turns praying. He said he doesn’t think their rights should be “stripped away” when they enter the board room.
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After the Supreme Court decided in January not to hear Forsyth County’s appeal, the state ACLU chapter contacted 25 county and city governments across North Carolina where it had received complaints.
More than 15 of those governments have voluntarily changed their policies since then, said Mike Meno, communications manager for the ACLU of North Carolina.
The group’s legal director, Katy Parker, previously said it has received the most complaints about Rowan County.
As of two weeks ago, Parker said three or four people have made a half dozen complaints in the county since 2009. She said some of them are willing to serve as plaintiffs in a lawsuit.
Meno said Thursday he had no comment on the organization’s plans or the possibility of legal action in Rowan County.
He said arguments like those by Ford and Mitchell reveal “a fundamental misunderstanding between private and government speech.”
“Private individuals have an absolute right to pray however they want, and that’s something that the ACLU vigorously defends,” Meno said. “But when an elected official in a government chamber is opening a public meeting that represents all citizens, the law is very clear that those invocations are then government speech.”
Michael J. Gerhardt, constitutional law professor at the University of North Carolina School of Law, said the Supreme Court “has tended to take the view that people’s free exercise of religion is something they do in their private lives.”
He said he doesn’t know details of the Fourth Circuit ruling on the Forsyth County case or how it would apply to Rowan, but the Supreme Court has heard similar cases about school prayer or religious symbols on government property.
In recent years, the court “has been relatively consistent,” he said, in ruling that such prayers or displays are unconstitutional if they favor a particular religion.
“The courts want something that is neutral,” Gerhardt said. “They want something that is not going to be interpreted by a reasonable observer as an actual endorsement of religion.”
Alternatives that wouldn’t be considered an establishment of religion include prayer that is not specific to one religion, private prayer before the meeting or a moment of silence.
Contact reporter Karissa Minn at 704-797-4222.
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