Yesterday, a federal court of appeals released a troubling decision in which the judges ruled, by a vote of 2-1, that a controversial government-prayer practice can continue.
In Rowan County, N.C., (not to be confused with Rowan County, Ky., home of the infamous Kim Davis) members of the county board of commissioners open their meetings by leading the board and the assembled members of the public in prayer.
All five board members are Christian, and, unsurprisingly, 97 percent of the prayers at the board meetings have been explicitly Christian prayers.
Compounding the problem, the commissioners do not just pray but request participation from members of the public. All residents of Rowan County who wish to observe or participate in the board meeting, whether they are Christian, Hindu, Jewish, Muslim or atheist, are asked by the commissioners to stand and join in the prayer, which, again, is invariably explicitly Christian.
In 2013, non-Christian residents of Rowan County sued, arguing that the commissioners’ practice of opening every meeting with a Christian prayer made them feel like outsiders in their own community. A federal judge agreed and ordered the county commissioners to stop. However, the county appealed, and that judge’s order has now been reversed by a divided panel of the 4th U.S. Circuit Court of Appeals.
The majority opinion, issued yesterday, purports to follow the U.S. Supreme Court’s 2014 decision in Town of Greece v. Galloway; however, the two cases could hardly be more different. In Greece, as in Rowan County, town meetings opened with a prayer. This is where the similarity between the cases ends.
People of all faiths and none should be welcome here.
In Greece, the prayers were not led by members of the town board but by private citizens, including both clergy and laypeople. And the prayers were not exclusively Christian but encompassed the different religions practiced by the town’s population, including Christianity, Judaism, the Bahá’í Faith and Wicca. In ruling that Greece’s prayer practice was constitutional, the Supreme Court emphasized that “any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.” In Rowan County, nothing could be further from the truth.
Additionally, the 4th Circuit majority concluded, curiously, that the audience for the commissioners’ prayers was not the assembled members of the public, but the commissioners themselves. This supposedly tracks Justice Anthony Kennedy’s observation in Greece that the legislators there were the intended recipients of the prayers. But, again, the differences between the two cases are crucial. In Greece, the prayers were given by members of the public. In Rowan County, the commissioners are leading the prayers, and they are explicitly asking members of the public to join in.
It defies common sense to suggest that the public is not the audience for the commissioners’ prayers. Furthermore, the Supreme Court in Greece explicitly stated that its “analysis would be different if town board members directed the public to participate.” The 4th Circuit majority was simply wrong to ignore this distinction.
Judge Harvie Wilkinson dissented from the majority’s opinion, voting instead to find Rowan County’s practice unconstitutional. Judge Wilkinson, a Reagan appointee who has previously upheld prayer at local government meetings, wrote about Rowan County, “I have seen nothing like it.”
His dissent observed that “Rowan County’s prayer practice featured invocations week after week, month after month, year after year, with the same sectarian references.” The constitutional problem with this, Judge Wilkinson explained, is that “[w]hen the state’s representatives so emphatically evoke a single religion in nearly every prayer over a period of many years, that faith comes to be perceived as the one true faith, not merely of individual prayer-givers, but of government itself.”
Such a result is exactly what the First Amendment’s provision barring “an establishment” of religion is supposed to prevent, and this passage succinctly reveals why the majority’s decision was incorrect.
This lawsuit is not about criticizing or suppressing the personal beliefs of the county commissioners, whose religion Wilkinson happens to share. According to his dissent, the prayers were “moving and beautiful on many levels,” but that doesn’t make presentation of exclusively Christian prayers by commissioners appropriate for a county board meeting.
Wilkinson makes the simple point that advocates of practices such as Rowan County’s so often seem to miss: “If we Christians were a religious minority, we would surely be sensitive to the invariable commencement of town hall meetings through invocation of a faith to which we did not subscribe.” (Indeed, the occasional – and absurd – panics about “Shariah law” in the United States bear this out.) Non-Christian residents of Rowan County should be able to exercise their right to attend open meetings of their local government without being coerced to participate in a Christian prayer.
The ACLU of North Carolina, which represents the plaintiffs, reportedly will seek to have this decision reviewed by the entire 4th Circuit. For the sake of protecting religious liberty, we at Americans United certainly hope that it will be overturned.