By Josh Bergeron
josh.bergeron@salisburypost.com

SALISBURY — As Rowan County commissioners’ controversial prayer lawsuit moves closer to another court date, some arguments in the case continue to morph.

The prayer lawsuit, known as Lund v. Rowan County, is set for a March hearing in front of all 15 judges for the 4th Circuit Court of Appeals. In district court, a federal judge ruled Rowan County’s prayer practices were unconstitutional. A three-judge panel for the 4th Circuit Court of Appeals found the opposite in a 2-1 ruling issued earlier this year.

Now, both sides are hoping for a second ruling in their favor

Depending on the outcome of the upcoming 15-judge hearing, the case could end up in front of the U.S. Supreme Court. For now, attorneys on both sides are using bits of this year’s 4th Circuit ruling to make initial arguments to the full court.

In a brief submitted to the court on Dec. 16, the ACLU seizes on the dissent of Judge J. Harvie Wilkinson to open its 30-page argument. Wilkinson was the lone member of the three-judge panel who said Rowan’s prayer practices were unconstitutional.

“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 14th amendments, the conviction that diversity in all of its dimensions is our abiding strength,” The brief states, quoting Wilkinson.

Rowan County’s attorneys — a consortium of law firms and other private groups — also finds bits of the most recent ruling to use in an argument to the entire court. The county’s brief uses Congress and even the Revolutionary War in an attempt to establish a historical precedent for the prayers that occurred at the start of county commissioners’ public meetings.

There’s nothing in the practice that diverges from historical precedent, Rowan County’s brief states. In fact, the Rowan brief argues there are much stronger requests to pray in historical tradition than what occurs at county commissioners’ meetings.

“As far back as the early days of the Revolutionary War, the Continental Congress set aside May 17, 1776, as a ‘day of humiliation, fasting and prayer throughout the colonies, calling upon Americans to ask for divine pardon and forgiveness through the merits and mediation of Jesus Christ,” the brief states, quoting a journal of congressional proceedings in the 1770s.

Although there are bits and pieces of new arguments or a stronger emphasis on particular items, the prayer lawsuit largely revolves around the same set of questions: whether public prayers are coercive, whether county commissioners themselves are able to publicly deliver prayers that are explicitly Christian, to whom the prayers are directed and whether there’s a historical precedent for the type of prayers that previously occurred at county commission meetings.

Despite the lawsuit, prayers still occur at the start of county commissioners’ meetings. However, the prayers are currently recited in a different manner than the ones at issue in the lawsuit. A chaplain picked by commissioners — either Sheriff’s Office Chaplain Michael Taylor or his son — recites a prayer at the start of the board’s meetings. Usually, Chairman Greg Edds also notifies attendees that they’re free to exit the room or remain seated during the prayer.

From 2007 to 2013, the period in question, commissioners themselves delivered prayers that were sectarian in nature. Details of whether commissioners intended to pray for themselves without including the public are one of the many issues in the lawsuit.

In Rowan County’s recent court filing, attorneys argue that the phrases “let us pray” or “please pray with me” don’t pose a constitutional problem. Noting a U.S. Supreme Court case known as Greece v. Galloway — often cited in Rowan’s case — the county’s attorneys say the phrases are “almost reflexive.”

For its part, the ACLU says phrases like “let us pray” constitute a direction. The ACLU also cites previous prayers by county commissioners that the ACLU calls proselytization or coercion.

One specific prayer cited by the ACLU in its recent brief occurred in March 2011.

“Holy Spirit, open our hearts to Christ’s teachings, and enable us to spread his message amongst the people we know and love through the applying of the sacred words in everyday lives,” the brief states, quoting the prayer.

The most recent brief to the court from the ACLU breaks down into parts that focus on: to whom the prayers were directed, whether Rowan County directed public participation, whether the prayers created a hostile environment for those who didn’t participate and that there is no longstanding tradition of prayers delivered by government officials in a hostile environment.

Rowan County’s most recent brief focuses on the same areas, with one exception. In its brief, Rowan County argues that combining features of different prayers doesn’t invalidate constitutional practices altogether. Another area that’s new is that Rowan’s attorneys say county commissioners could avoid any coercion concerns by beginning with a “message of religious welcome,” which was suggested by the three-judge panel this year.

In addition to Rowan County and the ACLU, several parties that aren’t directly involved in the lawsuit submitted supporting briefs to the 4th Circuit Court last week. Those briefs, however, only favored Rowan County. The groups filing briefs supporting Rowan County include the attorneys general of West Virginia and 12 other states, U.S. Justice Foundation, Conservative Legal Defense and Education Fund and Citizens United.

Contact reporter Josh Bergeron at 704-797-4246.