Michigan court ruling could help commissioners’ prayer suit

Published 12:05 am Thursday, September 7, 2017

SALISBURY — A Michigan court ruling on Wednesday may provide the boost that Rowan County commissioners hoped for in their lawsuit about prayer.

Since a federal court ruling in July, the commissioners have monitored a prayer case that is similar to their own in a federal court several states away. Like the Rowan County Board of Commissioners, a governing board in Michigan faces a lawsuit over its prayer practices before meetings.

Rowan County’s case was heard in in the 4th Circuit, and the Michigan case is in the 6th Circuit.

On Wednesday, the 6th Circuit Court of Appeals, by a 9-6 count, ruled that prayer practices by Jackson County, Michigan, commissioners do not violate the U.S. Constitution. The court said the commissioners in Michigan adopted a religion-neutral practice. Writing for the majority, Judge Richard Griffin said there is no evidence the board adopted its prayer practices with discriminatory intent.

“Although the prayers offered before the board generally espouse the Christian faith, this does not make the practice incompatible with the Establishment Clause. Quite the opposite, the content of the prayers at issue here falls within the religious idiom accepted by our founders,” Griffin wrote.

The ruling does not directly affect Rowan County’s lawsuit. However, in what’s known as a circuit split, Wednesday’s decision could increase the chances that one or both cases will be heard by the U.S. Supreme Court

The 4th Circuit, by a 10-5 count, ruled that Rowan County’s prayer practices from 2007 to 2013 violated the Constitution. Writing for the majority, Judge J. Harvey Wilkinson said Rowan County identified its government with one religion and risked conveying a message of exclusion.

Wednesday’s ruling means that two federal appeals courts have ruled differently on the same issue — a situation observers of Rowan County’s case say increases the chances that the Supreme Court will accept an appeal.

Asked about the 6th Circuit ruling, commissioners Chairman Greg Edds said he expected the Michigan prayer practices to be ruled constitutional.

“We’re going through the decision now and discussing how it will affect our case,” Edds said.

Meanwhile, Chris Brook, legal director of the N.C. ACLU, said he believes the 4th Circuit was correct when it found prayers by Rowan County commissioners violated the Constitution. Brook and the ACLU represent three local residents in the suit against the county commissioners.

“Community members should be able to attend public meetings without fear of religious coercion by local government officials,” Brook said.

Rowan County commissioners have not decided to appeal, but they appear to favor such a decision. They will meet on Sept. 25 to hear from members of the public and vote on the matter. Attorney David Gibbs, an attorney representing Rowan County, said it “appears likely” that commissioners will appeal to the Supreme Court.

The Supreme Court could decide not to hear Rowan County’s case, effectively making the 4th Circuit ruling final.

Rowan County’s case began when three local residents sued the commissioners with help from the N.C. ACLU. In federal district court, the commissioners’ prayer practices were ruled unconstitutional. A three-judge for the 4th Circuit panel later ruled that prayer practices were constitutional. The latest ruling came after the ACLU asked all 15 judges who serve in the 4th Circuit to review the case.

Judge Jeffrey Sutton of the 6th Circuit said in a concurring opinion Wednesday that all judges can agree that spiritual invocations are a permissible way to begin “work on behalf of the people.” The question, however, is which terms chaplains and elected officials can use while offering those invocations, Sutton wrote. He questioned whether it is OK to intervene in “the humble act of seeking guidance before a session of government.”

“So long as the prayer-giver does not try to coerce anyone into adopting their faith … I see no meaningful role for judges to play,” he wrote.

Rowan County and the Jackson County, Michigan, case are not identical but they bear striking similarities and revolve around many of the same questions. One such similarity is that Allyson Ho, a Texas-based attorney, made oral arguments for both counties in the 4th and 6th circuits.

Contact associate editor Josh Bergeron at 704-797-4246.