David Hudson

David Hudson

Rowan County, North Carolina’s, practice of having its board of commissioners lead off meetings with prayer violates the establishment clause, a divided full panel of the 4th U.S. Circuit Court of Appeals has ruled. The decision very well could be appealed to the U.S. Supreme Court and may be a good candidate for high court review.

The county’s board of commissioners opened each session with prayers, asking attendees to stand and pray with the commissioners. All of the prayers were Christian.

Three citizens sued, contending that the exclusively Christian prayers at the commissioner meetings violated the establishment clause. A federal district court agreed the prayer practices were unconstitutional, but a divided three-judge panel of the 4th Circuit reversed and found the practice constitutional.

On further appeal, the full panel of the 4th Circuit ruled 10-5 that the prayer practice was unconstitutional in Lund v. Rowan County. Writing for the majority, Judge J. Harvie Wilkinson III explained that “the prayer practice served to identify the government with Christianity and risked conveying to citizens of minority faiths a message of exclusion.”

The county had argued that the practice was supported by the U.S. Supreme Court’s decision in Town of Greece v. Galloway (2014), where a sharply divided court upheld a New York town’s practice of having minister-led prayer before town hall meetings.

However, Wilkinson explained that the prayer practice in Town of Greece v. Galloway was led by ministers and included prayers from different religions, while the prayer practice in Rowan County was led by the commissioners and were entirely Christian. “Town of Greece simply does not address the constitutionality of lawmaker-led prayer,” Wilkinson wrote.

The decision drew two sharp dissenting opinions.

Judge Paul V. Niemeyer accused the majority of “refus(ing) to recognize the importance of religion – and of legislative prayer in particular – to democracy and American civic life.”

Judge G. Steven Agree wrote a lengthier dissenting opinion, criticizing the majority for not following the Supreme Court’s reasoning in Town of Greece v. Galloway and for ignoring the long history and tradition of legislator-led prayer before public meetings.

The different opinions in the full panel of the 4th Circuit could make this a promising case for U.S. Supreme Court review. The 4th Circuit decision arguably conflicts with a recent 5th Circuit decision, American Humanist Association v. McCarty, upholding prayer before school board meetings.

David L. Hudson Jr. is the ombudsman at the Newseum First Amendment Center. He writes for firstamendmentcenter.org and for other publications devoted to First Amendment issues.