Rowan County commissioners again can open their meetings with prayer – at least for now.
A divided panel of the 4th Circuit Court of Appeals overturned the decision by a Greensboro federal judge and ruled that the mostly Christian invocation county leaders used to open their sessions did not violate the separation of church and state.
In the 2-1 decision, 4th Circuit judges Steven Agee of Virginia and Dennis Shedd of Columbia, S.C., cited a 2014 U.S. Supreme Court case involving the town of Greece, N.Y., that upheld prayer at public meetings.
The lower court judge, U.S. District Judge James Beaty of Greensboro, ruled in May 2015 that the Rowan County case differed because the commissioners themselves, not visiting ministers or audience members, were giving the prayers. Some 97 percent of the time between 2007 and 2013, those prayers were Christian.
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Agee and Shedd ruled, however, that the commissioners’ role was immaterial. In his majority opinion, Agee cited “a clear line of precedent not only upholding the practice of legislative prayer but acknowledging the ways in which it can bring together citizens of all backgrounds and encourage them to participate in the workings of their government.”
In his dissent, 4th Circuit member Harvie Wilkinson, said the commissioners’ prayers sent a message of “exclusion” to those who did not ascribe to their beliefs.
“... It is the combination of the role of the commissioners, their instructions to the audience, their invocation of a single faith and the local governmental setting that threatens to blur the line between church and state to a degree unimaginable” in the earlier Supreme Court case, Wilkinson wrote.
Bill Marshall, an expert on issues of church and state at the University of North Carolina law school, said the fact that Wilkinson is one of the most respected conservative legal voices in the country makes his criticism all the more powerful.
The American Civil Liberties Union, which sued the commissioners in March 2013 on behalf of three Rowan County residents, said it will ask the full 4th Circuit to hear the case.
Chris Brook, the ACLU’s legal director for North Carolina, described Monday’s decision as “out of step with the First Amendment’s protection of religious liberty for all.”
“Rowan County residents should be able to attend local government meetings without being coerced to participate in sectarian prayer or worry that commissioners may discriminate against them if they do not,” Brook said.
Brett Harvey of the Alliance Defending Freedom, which helped represent the county in the long court fight, said the appeals court followed the law.
“The First Amendment affirms the liberty of Americans to pray according to their consciences before public meetings. For that reason, the Fourth Circuit rightly upheld Rowan County’s prayer policy, which is clearly constitutional,” Harvey said in a statement.
The commissioners meet twice a month. As part of a long tradition and on a rotating basis, commissioners offer an invocation. Audience members are invited to stand and take part.
The legal battle drew interest beyond the Charlotte region, reflecting a broader national debate over religion and government. Following recent 4th Circuit rulings striking down same-sex marriage bans and in support of transgender bathroom rights, Monday’s ruling was welcomed by social conservatives as a clear victory.
But the celebration may be short-lived. Once known as perhaps the country’s most conservative federal appeals court, the 4th Circuit today is now one of the most liberal. Two-thirds of its members have been selected by Democratic presidents Bill Clinton or Barack Obama.
Both Agee and Shedd, a former member of Sen. Strom Thurmond’s staff, were nominated by President George W. Bush. Wilkinson, who has been mentioned in the past as a potential candidate for the Supreme Court, was nominated by Ronald Reagan.
Eight justices on the Richmond, Va.-based court must agree to take the case before the entire court hears it. That decision can come within a matter of a few weeks or much longer depending on the members’ level of agreement or dissent.
Marshall predicts that Wilkinson’s clout makes an “en banc” review by his colleagues almost certain.
“The rest of the court is going to listen and at least consider the argument he makes,” said Marshall, adding that an eventual decision by the Supreme Court is possible.