Photo Credit: Courtesy of Harley Pebley
By Sabrina Heck, Staff Member (Vol. 16)
Imagine sitting in a small-town community meeting, at which you make decisions about traffic, school zones, and other issues that impact your community. You have a keen interest in being present, and you want your voice and concerns to be heard. But you do not believe in God. You do not pray. As the rest of the room bows their head in prayer before the discussion of a proposed traffic light, you look straight ahead, eyes open. You hear a scoff to your right, small and subtle. It is enough. It is enough to make you feel uncomfortable. Enough to make you wish you had bowed your head and closed your eyes in mock prayer not to be out-casted, judged, and belittled by members of your community. You are no longer a peer but a civilian that is tolerated. Your opinions are tainted in their eyes. What you have to say about the stoplight, however insightful, is repudiated by this non-secular community. Why? Because whether or not you believe in “God” obviously correlates to your ability to determine what the timing of the signals at the new stoplight should be.
Until 2013, the Rowan County Board of Commissioners opened community meetings with Christian prayer. Then, the ACLU of North Carolina intervened. The ACLU filed a lawsuit challenging the commissioners’ coercive prayer practice in March 2013 on behalf of three Rowan County residents. The ACLU argued that the commissioner’s practice and the invitation to prayer before public community meetings is a violation of the Establishment Clause. So far, this argument has succeeded. The district court held the prayer to be unconstitutional. The case then went to a three-judge panel of the Fourth Circuit. The panel reversed the district court’s decision, but the full court granted a rehearing en banc and reversed the holding of the panel in a 10-5 decision.
The decision by the Fourth Circuit that Rowan County’s prayer practice before community meetings is unconstitutional relies heavily on the fact that Rowan County lawmakers lead the prayer. This, combined with the county leaders consistently invoking only one faith, Christianity, and requesting that members participate shows a tendency that the community preferred Christianity over all other religions. In making their decision, the judges looked to prayer by former commissioner Jon Barber in which he said the “one way to salvation is Jesus Christ,” as well as a prayer by former commissioner Carl Ford in which he prayed “that citizens of Rowan County put Jesus Christ first.”
ACLU of North Carolina Legal Director Chris Brook stated that “[t]his ruling is a great victory for the rights of all residents to participate in their local government without fearing discrimination or being forced to join in prayers that go against their beliefs.” Unfortunately, this victory for the ACLU is not going unchallenged. The decision by the Fourth Circuit has not deterred county commissioners from trying to prevail on their argument that the practice of prayer before meetings is a rooted tradition. The commissioners voted 5-0 in favor of appealing the case to the U.S. Supreme Court.
If the Supreme Court decides to hear the case, their decision as to the constitutionality of Rowan County’s prayer practice may be closer than one would initially think. In 2014, the Supreme Court decided in Town of Greece v. Galloway that the town’s practice of opening meetings with prayer does not violate the Establishment Clause. The case was decided 5-4 and reversed the Second Circuit’s holding that, “some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity.” Justice Kennedy authored the opinion and wrote that “[t]he town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents.”
The language of Kennedy’s opinion in Galloway mirrors the arguments of the lawyers for Rowan county who have stated the prayers neither “threaten damnation nor preach conversion,” and have pointed to a tradition of legislative prayers going back to a time before the founding of the republic. The Rowan case is distinguishable from the Galloway case in that government officials led the prayers, not volunteer chaplains. If the case is taken to the Supreme Court, the lawyers for Rowan County may try to rely upon Marsh v. Chambers. In Marsh, the Supreme Court ruled that the Nebraska Legislature’s practice of opening its sessions with chaplain-led prayer is constitutional for it is a practice that has continued without interruption for approximately 200 years. The Court stated that “[w]hile historical patterns, standing alone, cannot justify contemporary violations of constitutional guarantees, historical evidence in the context of this case sheds light not only on what the drafters of the First Amendment intended the Establishment Clause to mean but also on how they thought that Clause applied to the chaplaincy practice authorized by the First Congress.”
The Rowan case is notably dissimilar to Marsh in two ways; (1) Rowan county prayer is led by lawmakers and (2) It is not clear that the practice of prayer is a longstanding tradition rooted in history. Rowan County Commissioners most likely understand that this difference significantly hurts their case for after the district court’s ruling that the prayer is unconstitutional the commission invited a volunteer chaplain to lead the prayers.
Judge Wilkinson’s majority opinion for the Rowan case emphasizes that “Marsh and Town of Greece do not settle whether Rowan County’s prayer practice is constitutional. Those decisions did not concern lawmaker-led prayer, nor did they involve the other unusual aspects of the county’s prayer practice. And certainly, did not address the confluence of these elements.” Because of this inability to rely on prior cases concerning prayer the Supreme Court may hear the case, but if they decline to review the Commissioner’s appeal than the holding of the Fourth Circuit will stand.
One should feel open and free to participate in community activities and discussions. The decision of the Fourth Circuit gives members of the community who do not associate themselves with Christianity or any other religion the ability to have their opinions heard and heeded without a veil of disdain.