Decorative Scales of Justice in the CourtroomWritten by Don Byrd

Last year, the U.S. Supreme Court in Town of Greece upheld a legislative prayer policy that included sectarian Christian prayer. In their ruling, however, the Court made clear that there were limits to the kinds of prayers and prayer policies opening government meetings that would be acceptable. If the policy is discriminatory, for example, or the prayers are coercive, then Town of Greece would not protect them.

Last week, a federal court in North Carolina ruled the practice of the Rowan County Commission violates the limits of Town of Greece on both accounts. Central to its decision is the fact that the Commissioners themselves deliver the opening invocations in Rowan County, unlike the rotating clergy system in Town of Greece. Because they deliver the prayers themselves, the court ruled, the policy is discriminatory.

Here is an excerpt from the opinion:

Where the Commissioners themselves are the ones giving the prayer, they are by default acting as “supervisors” of the prayers, and are themselves “editing [and] approving prayers” as they simultaneously deliver those prayers. . . .

Under the Board’s practice, the government is delivering prayers that were exclusively prepared and controlled by the government, constituting a much greater and more intimate government involvement in the prayer practice than that at issue in Town of Greece or Marsh. The Commissioners here cannot separate themselves from the government in this instance.

While an all-comers policy is not necessarily required, a nondiscriminatory one is. When all faiths but those of the five elected Commissioners are excluded, the policy inherently discriminates and disfavors religious minorities.

The Court also found the prayer to be coercive, because the Commissioners invite the public to stand and pray with them.

While attendance at Board meetings is of course not mandatory, for concerned citizens wishing to advocate for matters of local import with direct impact on local citizens’ lives, attendance and maintaining the Board’s respect are of utmost importance. When Plaintiffs wish to advocate for local issues in front of the Board, they should not be faced with the choice between staying seated and unobservant, or acquiescing to the prayer practice of the Board, as joined by most, if not all, of the remaining public in attendance.

This case is worth following. Many local government invocations are delivered by government officials across the country. Will that issue be the next line of contention in legislative prayer disputes: who delivers the prayer?