Legislator-Led Prayers Constitutional, 4th Cir. Says

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By Nicholas Datlowe

Sept. 20 — A North Carolina county's practice of opening meetings with a legislator-led prayer is constitutional, a divided U.S. Court of Appeals for the Fourth Circuit ruled Sept. 19 ( Lund v. Rowan Cty., N.C., 2016 BL 307469, 4th Cir., No. 15-1591, 9/19/16 ).

The practice fell “within our recognized tradition” of legislative prayer, and did not coerce participation by non-adherents, Judge G. Steven Agee wrote for the court. He was joined by Judge Dennis W. Shedd.

“The First Amendment affirms the liberty of Americans to pray according to their consciences before public meetings,” said Brett Harvey in a Sept. 19 statement. Harvey is senior counsel with Alliance Defending Freedom , and was co-counsel for the county.

The court “rightly upheld Rowan County’s prayer policy,” he said.

The decision came over a strong dissent by Judge J. Harvie Wilkinson III, who said “I have seen nothing like it.”

It “doesn't respect religious minorities or religious diversity,” Alex Luchenitser told Bloomberg BNA Sept. 20. Luchenitser is the Associate Legal Director of Americans United for Separation of Church and State , which represented amici in favor of the plaintiffs.

Ruthann Robson, a professor at City University of New York School of Law, noted a “slippery slope” problem. If Rowan County's practices are permitted, “then there doesn't seem to be much that would not be permitted,” she told Bloomberg BNA in a Sept. 20 e-mail.

Attorneys representing amici supporting the county did not return a request for comment.

In Jesus' Name

Rowan County permits its commissioners, on a rotating basis, to begin public meetings of the board with a prayer. The content of the prayer is entirely up to the individual commissioner, and is not reviewed by the board.

In practice, the “overwhelming majority” of the prayers were overtly Christian, the court said. According to the dissent, 97 percent of the prayers explicitly referenced Christianity, and the “vast majority” closed with some variant of “in Jesus' name.”

In deciding this practice was constitutional, the majority relied heavily on the U.S. Supreme Court's decision in Town of Greece v. Galloway, 82 U.S.L.W. 4334, 2014 BL 124245 (U.S. May 5, 2014).

The Town of Greece also began its public sessions with a prayer, though unlike Rowan County these prayers were delivered by invited clergy or laypeople. In practice the majority of those prayers were Christian as well.

The Supreme Court held that the practice was constitutional. Opening legislative sessions with a prayer was common practice at the founding, and the town's prayers didn't denigrate other faiths or attempt to proselytize. As long as the policy regarding the prayers was formally non-discriminatory, the practice was permissible.

Distinction, Difference?

The question here, then, was whether the fact that the commissioners themselves gave the prayers, rather than invited speakers, made a difference.

It did not, the Fourth Circuit held. The Supreme Court attached no significance to the identity of the prayer giver, and historically legislators had often given opening invocations, the court said.

In addition, like the prayers in Town of Greece, the prayers here did not disparage or proselytize.

Nor were the prayers coercive, the court held. Attendance and participation was voluntary, and those who did not participate faced no adverse consequences, the court said.

But Wilkinson, dissenting, argued that the combination of factors present here set this case apart from Town of Greece.

In particular, the fact that only the elected commissioners could lead the prayers “takes us one step closer to a de facto religious litmus test for public office,” because voters might consider what kind of prayer a candidate for commissioner would deliver, he said.

Robson agreed, saying that this issue seems very problematic. She also suggested that the majority's decision seemed to validate Justice Elena Kagan's dissent in Town of Greece.

Luchenitser went further, arguing that the majority was “not paying much attention to Town of Greece.” The truly neutral policy there, of allowing officiants of all faiths, was in contrast to the policy here, which allowed only the Christian commissioners to lead prayers.

Town of Greece was intended to conform legislative prayer to more general First Amendment jurisprudence, not create a special exception” for legislative prayer, he said.

En Banc Ahead?

Both Robson and Luchenitser speculated that a petition for en banc rehearing would be forthcoming from the petitioners.

Luchenitser noted that the panel here was “more conservative than the Fourth Circuit as a whole.” He pointed out that Wilkinson was a Reagan appointee, and that this decision went too far, even for a comparatively conservative judge.

Luchenitser also pointed out that it will be four to five months before the Fourth Circuit makes a decision whether or not to take the appeal. In the meantime, we may learn who the ninth Supreme Court justice will be, or at least who will appoint him or her. That information may be relevant both to the Fourth Circuit's decision in the case, and whether petitioners will petition for Supreme Court review.

The ACLU and ACLU of North Carolina represented the plaintiffs. Alliance Defending Freedom, First Liberty, Gibbs Law Firm P.A. and Morgan Lewis & Bockius LLP represented the county.

To contact the reporter on this story: Nicholas Datlowe in Washington at ndatlowe@bna.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com and Jeffrey D. Koelemay at jkoelemay@bna.com

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