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Prayer delivery may change at many government meetings after Supreme Court action

By Tim Funk and Michael Gordon/The Charlotte Observer (TNS) • Jul 1, 2018 at 12:00 PM

CHARLOTTE, N.C. — There still will be prayers when Rowan County's (North Carolina) Board of Commissioners meet, but they no longer will be led by the commissioners themselves.

That was the word Thursday from the county's lawyers after the U.S. Supreme Court let stand a lower court ruling that found the commissioners' practice of delivering Christian prayers before their public meetings was unconstitutional.

The lower court ruling covers several states, including the Carolinas.

The ACLU of North Carolina, which sued the Rowan commissioners in 2013, saw the high court's action as a victory for people who don't want to be coerced into praying at a government meeting.

The lasting impact of the case will be to force the commissioners and other elected officials in the Carolinas and beyond "to be more inclusive of residents of all beliefs," said Chris Brook, legal director for the ACLU of North Carolina.

As the lawsuit and appeals wound through the courts, Rowan commissioners stopped leading the prayers. Instead, they invited Michael Taylor, chaplain for the county's sheriff’s office, or his son to offer invocations.

Barbara Weller, an attorney with the National Center for Life and Liberty, which represented Rowan County, said the commissioners have not yet decided whether they'll leave the prayer to Taylor or others, but "they won't go back to their original procedure.

"The key is the prayers will continue," said Weller. "It's just a matter of who is going to give them."

The high court's decision to not hear the commissioners' appeal leaves in place a 2017 ruling by the full Fourth Circuit Court of Appeals in Richmond, Va. That court found that the commissioners, who routinely led Christian prayers and invited the audience to stand and join in, violated the First Amendment ban on governments' establishing a preferred religion.

The ACLU, which sued in 2013 on behalf of three Rowan residents, said that between 2007 and 2013, 97 percent of the prayers by the commissioners were Christian. The residents who brought the suit are all non-Christian; one is Jewish.

“This is an important victory for the rights of all people to be free from religious coercion by government officials,” said Brook, who argued the case at the district and appeals court. “People who attend public meetings should not have to fear that government officials may force them to participate in a prayer — or discriminate against them if they don’t.”

But David Gibbs, one of Rowan's defense attorneys, said the Supreme Court should have taken the case.

“The will of the people of Rowan County as to who they have elected should be respected, as should the freedom of those representatives to pray in accordance with their consciences,” said Gibbs. “No American should be forced to forfeit their freedom because someone else doesn’t like what you say or what you believe.”

The impact

What impact will the high court's decision have?

For starters, it will be limited geographically. Because the Supreme Court passed on taking up the case itself, only the states in the Fourth Circuit — North Carolina, South Carolina, Virginia, West Virginia and Maryland — will be bound by the ruling.

"But that is many people and local governments," said Carl Tobias, a law professor at the University of Richmond. "Localities need to strongly consider what the Fourth (Circuit) said and change the practice that the court said violated the Constitution."

The Rowan board is one of several governing bodies in North Carolina that have been criticized and even sued over the years for starting their meetings with sectarian prayers. Among the others: the commissioners in Union and Lincoln counties, and the Kannapolis City Council.

On Thursday, Union County spokesman Brett Vine, said commissioners still open their meetings with mostly Christian prayers and that they're mostly led by the officeholders themselves.

He said regardless of the court's ruling, he's heard nothing about changing that practice. "That'll be completely up to the commissioners," he said.

It's a bit different in practice if not in policy with the Mecklenburg County Board of Commissioners and the Charlotte City Council.

Mecklenburg policy still says that each official meeting "shall open with prayer," and that "the prayer shall be rotated among the commissioners," said county spokesman Daniel Diehl.

But Mecklenburg commissioners have tried to be more non-sectarian. Some commissioners over the years have mentioned Jesus in their prayers, but not all have. And a few Mecklenburg commissioners who were Jewish or Muslim said prayers in their traditions.

Charlotte City Council meetings open with an "invocation" from one of the members, said city spokesman Jeremy Mills. But he said it's usually more of "a moment of reflection" than a prayer.

Mills said Mayor Vi Lyles invites people in the audience to stand or sit during the invocation, but stand during the Pledge of Allegiance.

'We are just praying'

Lawyers representing the Rowan commissioners had hoped the high court would take up the N.C. case as a way of clarifying the law regarding prayer at public meetings. In a 5-4 ruling in 2014, the high court said the town of Greece, N.Y., was permitted to let volunteer chaplains open each public meeting with a prayer. Most of the prayers were Christian.

And while the Fourth Circuit ruled against legislator-led mostly Christian prayers in Rowan County, the 6th Circuit Court in Cincinnati ruled in favor of legislator-led prayers in a Michigan case.

"The fact that the (Supreme Court) didn't rule (in the Rowan case) is disappointing because it leaves all these questions up in the air," Weller said. "Legislators (around the country) are left in limbo as far as any guidelines."

One of the nine Supreme Court justices, Clarence Thomas, said he'd have taken the Rowan County case.

“In ruling that Rowan County must change the prayers it uses to open its board meetings, the Court of Appeals for the Fourth Circuit emphasized that the county’s prayers are led by the legislators themselves, not by paid chaplains or guest ministers," Thomas wrote in his dissent. "This analysis failed to appreciate the long history of legislator-led prayer in this country, and it squarely contradicted a recent decision of the Sixth Circuit. I would have granted Rowan County’s petition."

The Rowan commissioners voted 5-0 in 2017 to appeal the full Fourth Circuit ruling to the Supreme Court.

“We are not proselytizing; we are just praying in the only way that we know how,” Vice Chairman Jim Greene said at the time. “Making someone feel uncomfortable is not coercion.”

But the ACLU's Brook said, "No one should have to choose between their beliefs and being able to fully participate in their local government."

As for how the ruling fits in with other high-profile religious liberty cases, Brooks gave the final word to the opinion of the Fourth Circuit's ruling on the case, which was written by Judge Harvey Wilkinson.

"Our Constitution seeks to preserve religious liberty without courting religious animosity," wrote Wilkinson, who was appointed to the appeals court by President Ronald Reagan and remains one of the country's leading conservative legal voices.

"In this quest, our two religion clauses have been a great success, helping to spare Americans the depth of religious strife that so many societies have had to suffer and endure. And yet free religious exercise can only remain free if not influenced and directed by the hand of the state. On this score, the county simply went too far."

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