The five-person Board of County Commissioners of Rowan County, North Carolina, begins each of their semi-monthly meetings with a prayer. (They post videos of their meetings online.) The full 15-judge Fourth Circuit U.S. Court of Appeals held 10-to-5 today that this practice is unconstitutional as a violation of the Establishment Clause.
Prayer to start government meetings remains a hot topic. In 2014, the Supreme Court held 5-4 that it was constitutional for the town of Greece, New York, to begin its monthly meetings with a prayer. So how did Rowan County lose their case just three years later?
Let’s compare. Greece invited outside clergy and laypersons to give an opening prayer or invocation at their meetings, and the town “neither reviewed the prayers in advance” nor “provided guidance as to their tone or content.” Rowan County, on the other hand, rotated among the five board members who would give the opening prayer, never letting any outsider give it. Thus, Rowan County’s practice was “rigid” and “restrictive,” said the court, whereas Greece’s practice was “flexible” and “inclusive.”
Consequently, given the board’s all-Christian makeup, all the Rowan County prayers were Christian for over five years. 97% of the prayers mentioned “Jesus,” “Christ,” or “Savior.” Members sometimes invited attendees to participate in the prayer. Some prayers suggested that Christianity was a superior religion. And some board members “implored attendees to accept Christianity.” When board members were asked to stop their start-of-meeting prayers, they refused. One even said that he’d “be the first to go to jail” for it. These differences, said the court, made all the difference. The county allowed the practice to “get out of hand,” resulting in “an unprecedented prayer practice.”
The county insisted that ruling against them would mean an end to legislator-led prayer–a practice with deep historical roots. The court, in response, said that the county was “waging war against a phantom,” because not all legislator-led prayer is necessarily unconstitutional. Thus, whether prayer to start government meetings violates the Establishment Clause appears to remain a “fact-sensitive” inquiry. In this case, the facts were not in Rowan County’s favor.
We would expect the county to appeal this ruling to the Supreme Court. We’ll wait and see if the justices agree to hear the case.
Case: Lund v. Rowan Cty., No. 15-1591 (4th Cir. July 14, 2017) (en banc) (opinion here)