Federal court rules in Rowan’s favor, overturns lower court in controversial prayer lawsuit

Published 12:05 am Tuesday, September 20, 2016

By Josh Bergeron

SALISBURY — Rowan County commissioners on Monday scored a major court victory when a federal appeals court, by a 2-1 count, overturned a prior ruling in a controversial prayer case.

The U.S. Court of Appeals for the 4th Circuit ruled that a lowered court erred when it declared unconstitutional commissioners’ prayer practices from 2007 to 2013. A U.S. District Court judge found sectarian prayers at the start of county commissioners meetings to be in violation of the First Ammendment’s establishment clause. At issue was the fact that sectarian prayers were delivered only by county commissioners.

Writing for the majority, Judge G. Steven Agee said the district court treated the Supreme Court’s silence on lawmaker-led prayer as excluding county commissioners from giving opening prayers. In Monday’s 4th Circuit ruling, Agee said the lower court ruling is “not supportable.”

Agee wrote that Rowan County’s prayer practices from 2007-2013 fit within the longstanding tradition of lawmaker-led prayer. Taken as a whole, the county commissioners’ prayer practices do not coerce or disparage. Agee wrote that the court found no evidence the Board of County Commissioners, as a board, crafted prayers to say before meetings. Instead, prayers were a personal creation. The prayers were also given for the benefit of members of the board, Agee noted.

When asked about the decision on Monday, commissioners were short in their remarks. Chairman Greg Edds praised the ruling in a short statement emailed to the Salisbury Post.

“We are very pleased with the decision and think the Court properly decided the matter,” Edds wrote. “Our attorneys are currently working through the decision and we will know more about it in the coming days.”

Despite the ruling, sheriff’s office chaplain Michael Taylor will continue to offer opening prayers at commissioners’ meetings until the lawsuit is complete, according to Edds

Judge Dennis Shedd concurred with the majority ruling. Judge J. Harvie Wilkinson, a Reagan appointee, dissented and authored an opinion that didn’t bother to mince words.

“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,” Wilkinson wrote.

The ACLU, representing three plaintiffs who are Rowan residents, seized Wilkinson’s dissent as a reason to seek en banc review — where all 15 4th Circuit judges hear the case.

“Today’s ruling is out of step with the First Amendment’s protection of religious liberty for all, and we will ask the full appellate court to review this decision,” said North Carolina ACLU Legal Director Chris Brook. “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.”

Monday’s ruling likely won’t be the end of the prayer lawsuit. Even if it’s denied an en banc review, the ACLU and plaintiffs could appeal to the U.S. Supreme Court.

During oral arguments in January, attorneys for Rowan County primarily argued that a prayer giver’s identity doesn’t matter and that prayers before meetings are constitutional if they don’t “threaten damnation” or demonize others. In his majority opinion, Agee agreed with Rowan County on both points.

“The content of the commissioners’ prayers largely encompassed universal themes, such as giving thanks and requesting divine guidance in deliberations,” Agee wrote. “There is no prayer in the record asking those who may hear it to convert to the prayer-giver’s faith or belittling those who believe differently. And even if there were, it is the practice as a whole — not a few isolated incidents — which controls.”

The majority opinion sided with Rowan County on the identity argument because legislators — commissioners in this case — are the intended target.

“Not only are the legislators themselves the intended “congregation” for legislative prayer, but the practice carries special meaning to the thousands of state and local legislators who are citizen representatives,” Agee wrote.

He also said there’s no requirement in case law that shows legislative prayer practice needs to reflect multiple faiths.

“Absent proof the Board restricted the prayer opportunity among the commissioners as part of an effort to promote only Christianity, we must view its decision to rely on lawmaker-led prayer as constitutionally insignificant,” Agee wrote.

The dissenting opinion, however, offered a starkly different view. Wilkinson said prayers offered a message of exclusion and a potential for religious division. He said Rowan’s case is a conceptual world apart from Greece vs. Galloway, a case referenced repeatedly in Monday’s ruling and throughout the suit.

“No one disputes that localities enjoy considerable latitude in opening their meetings with invocations and prayers,” Wilkinson wrote. “But the legislative prayer practice here pushes every envelope.”

He implied that the majority treated Rowan’s case as more simple than it really is. He also said that judges cannot discern which prayers are primarily for the benefit of legislators or commissioners and which ones are aimed at attendees.

He also took issue with the fact that prayers offered by commissioners are entirely Christian. He said entirely christian prayers are one step closer to a “de facto religious litmus test for public office.”

“While a small group of legislators can diversify their appointment of prayer-givers at will, it may be more difficult to expect voters to elect representatives of minority religious faiths,” Wilkinson wrote. “Failure to pray in the name of the prevailing faith risks becoming a campaign issue or a tacit political debit, which in turn deters those of minority faiths from seeking office.”

Commissioner candidates have discussed the prayer lawsuit as a campaign issue.

Near the end of his dissent, Wilkinson says, “Americans are encouraged to practice and celebrate religion, but it shouldn’t be established through the state.”

Contact reporter Josh Bergeron at 704-797-4246.