Appeals court tells Rowan County to find another way to pray

Rowan County commissioners pray before a meeting.
Rowan County commissioners pray before a meeting. Observer file photo

Rowan County commissioners can keep praying before meetings, a federal court ruled Friday.

Just not in the way they used to do it.

In a ruling that tries to bridge the country’s centuries-old debate over church and state, the 4th Circuit Court of Appeals threw out the longtime prayer ritual Rowan officials used to start their public gatherings.

However, the court’s 10-5 decision criticized the commissioners’ style of prayer, not the prayer itself. And it borrowed heavily from the First Amendment, which prohibits governments from establishing a religion.

“The principle at stake here may be a profound one, but it is also simple,” Judge Harvie Wilkinson of Virginia wrote. “The Establishment Clause does not permit a seat of government to wrap itself in a single faith.”

Rowan County, he said, “elevated one religion above all others and aligned itself with that faith. It need not be so .... The desire of this good county for prayer at the opening of its public sessions can be realized in many ways that further both religious exercise and religious tolerance.”

The ruling does not necessarily end the four-year-old court fight. Some legal experts expect the county to quickly appeal Friday’s decision to the U.S. Supreme Court. The high court’s last major prayer ruling was only three years ago.

Greg Edds, chairman of the Rowan Board of County Commissioners, said he was “obviously disappointed but not surprised” by the opinion.

“We're working through dissecting the 108-page split decision right now,” he said Friday night. “(We’ll) be meeting with our counsel in the coming weeks to discuss where we are and map out our options.”

Mike Berry, a lawyer with First Liberty Institute, another of the county’s legal partners, made it sound like a challenge is imminent.

He said Friday’s ruling breached Supreme Court precedent, adding: “We are encouraged that the split in the vote ... demonstrates the need for Supreme Court review.”

Greg Edds, chairman of the Rowan Board of County Commissioners, did not reply to an Observer email seeking comment.

On the winning side, Nancy Lund, one of three Rowan residents who joined the original suit filed by the American Civil Liberties Union, said Friday’s ruling reestablishes necessary boundaries and removes unnecessary walls.

“No one in this community,” she said, “should fear being forced by government officials to participate in a prayer, or fear being discriminated against because they didn’t participate in a prayer before a meeting for all the public.”

In finding the county’s former prayer unconstitutional, the appeals court’s majority focused on four elements: that the commissioners gave the prayers themselves; that 97 percent of the prayers between 2007-2013 were Christian; that the audience was urged to join in; and because of the government setting, members of the public who had business with the officials often felt pressured to take part in the prayer.

“Combined together, the court said that this was a unconstitutional practice,” said Bill Marshall, a University of North Carolina law professor who specializes in matters of church and state.

Marshall noted that the ruling did not spell out an acceptable replacement. The county, however, appears to have already found one. The commissioners still begin their meetings with prayer. But they are led by a visiting minister, who faces the commissioners and does not solicit the audience to join in.

The case has been an emotional one, with religious groups and elected officials from around the country lining up in support of Rowan County as the commissioners pledged to pray on.

“I will always pray in the name of Jesus,” former commissioner Jon Barber said at one point. “God will lead me through this persecution, and I will be his instrument.”

In 2014, the Supreme Court voted 5-4 that the town of Greece, N.Y., was not violating the Establishment Clause by starting its meetings with prayers, which were led by volunteer ministers, and nonbelievers were not coerced to take part. To ensure inclusion for all religions, the Greece officials even granted the request of a Wiccan priestess to take part.

In a dissenting 4th Circuit opinion, Judge Paul Niemeyer, who was appointed to the court by former President George H.W. Bush, said the majority ruling sidesteps the Greece precedent and “actively undermines the appropriate role of prayer in American civic life.”

Wilkinson, a Ronald Reagan appointee and one of the country’s leading conservative legal voices, disagreed.

“The great promise of the Establishment Clause is that religion will not operate as instrument of division in our nation,” he wrote.

“Rowan County regrettably sent the opposite message” by creating “a closed-universe of prayer-givers dependent solely on election outcomes.... Free religious exercise can only remain free if not influenced and directed by the hand of the state.”

Chris Brook, legal director the ACLU of North Carolina, said the appeals court ruling makes the county’s public meetings truly public once again.

“The plaintiffs in this case are longtime Rowan County residents. All they ever wanted was to go the meetings of the county, and for the commissioners and those meetings to be welcoming to members of all faiths,” Brook said.

“It is very gratifying for them to hear the judges say the Constitution is on their side.”

Michael Gordon: 704-358-5095, @MikeGordonOBS