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Uphill legal battle for Rowan

A future news flash from 2018: The Supreme Court has refused to hear an appeal by Rowan County to allow its commissioners to open meetings with prayers to Jesus.
In all likelihood, this is a case Rowan County cannot win. Rowan is in the Middle District of North Carolina. Regardless of the outcome there, the case will likely be appealed to the Fourth Circuit. Then the U.S. Supreme Court can be petitioned to hear the case.
The Supreme Court refused to hear the Joyner case in Forsyth County two years ago. Since both Rowan and Forsyth are in the Middle District, the Supreme Court will not hear Rowan County’s case unless the facts are significantly different or unless opposite decisions around the country result in the law being applied differently across the United States.
Neither of those situations exist.
First, the Rowan case is less constitutionally friendly and less compelling than the Forsyth case. Forsyth had a written nondenominational policy using outside clergy. Rowan has no written policy and the commissioners themselves offer prayers. That makes Rowan’s case more difficult constitutionally.
Second, the court decisions around the country are consistent. Certainly, the courts have reached different conclusions, but the constitutional scrutiny has been applied consistently to the different factual settings.
Therefore, Rowan County will lose.
To be clear, legislative prayer is constitutional. The Supreme Court has heard one case, Marsh v. Chambers in 1983, on legislative prayer. In that case, the Nebraska legislature hired a chaplain to give an invocation at the beginning of each legislative session. Instead of relying upon an analysis of “separation of church and state,” as it had in striking down prayer in many public school prayer cases, the court examined the use of prayer by legislatures throughout history.

In Marsh, a Jewish legislator objected to the content of the prayers. The chaplain then removed all references to Jesus, and the Supreme Court held Nebraska’s nondenominational policy as implemented by a Christian chaplain to be constitutional. That case cemented the constitutionality of legislative prayer if the policy neither advocated nor disparaged a particular religion.
Two issues are at the crux of all legislative prayer cases: Is the policy nondenominational? How is that policy implemented? If both policy AND implementation avoid preferring one denomination over another, legislative prayer has been held constitutional. Otherwise, it’s not.
Cases in South Carolina, Virginia, Georgia, Utah, Indiana, Florida, California and elsewhere have addressed legislative prayer policies. Some have been held to be constitutional and others unconstitutional, but the constitutional principles behind the decisions are consistent.
Earlier this year, cases in Florida and California upheld legislative prayer policies where written nondenominational policies invited clergy from all denominations to offer invocations. The elected officials themselves did not offer the prayers. Acknowledging that the majority of the prayers were Christian because the majority of the population was Christian, both courts upheld the practices because the policies and implementation were nondenominational. Forsyth County had a written nondenominational policy that invited outside clergy, but only Christian clergy delivered the prayers, and almost 80 percent of the prayers invoked Jesus. Thus, the courts held that the implementation of its policy violated the Constitution.

Rowan has no written policy. Prayers are given by the commissioners. Implementation has been Christian only. That is not a winnable case.
Instead, the Rowan commissioners will win the hearts and souls of the majority of voters. They may not use county tax dollars, but they will use county time and county energy that could be better spent elsewhere.
Rowan commissioners could get 95 percent of what they want by adopting a written nondenominational policy and using outside clergy and citizens to offer prayers. (A case in Utah allowed a city to exclude a prayer-giver who intended to use the opportunity to politically criticize the prayer policy.) Because the majority of Rowan County clergy is Christian, most prayers would be. In Lancaster, Calif., one Muslim and two Jews gave prayers over a year. The rest were given by Christian leaders, not all of whom invoked Jesus, though some did. The policy was held to be constitutional.
In a time where our political leaders are unwilling to compromise unless they get all of what they want, this would be an opportunity for Rowan County commissioners to get almost all of what they want and pass constitutional scrutiny.
George Washington predicted the problems that lay ahead both home and abroad. In 1792, he wrote, “Religious controversies are always productive of more acrimony and irreconcilable hatreds than those which spring from any other cause.”
Let us hope the commissioners and the public understand that the Constitution is designed to protect the minority, rather than to impose the will of the majority. And that George Washington knew what he was talking about.

David Post is a business owner and lawyer who lives in Salisbury. He will provide legal citations to any of the cited cases if requested. Email: DavidPostOpinion@gmail.com.

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