Written by Don Byrd
Yesterday, the 4th Circuit Court of Appeals by a 2-1 vote upheld the legislative prayer practice of the Rowan County (NC) Commission, in which commissioners themselves offered invocations – often specifically Christian prayers – to open government meetings. The ruling overturns the decision of the district court, which found Rowan County’s practice unconstitutional.
In most court rulings on the issue of legislative prayer, the invocation-givers have been area clergy, or chaplains. Here, the district court’s opinion hinged on the fact that the commissioners delivered the prayers, and that they routinely began with an invitation to the audience, often consisting of community members with business before the commission, to join in, either by standing or bowing their heads, or both.
The 4th Circuit Appeals Court disagreed and found the issue of who gives the prayer to be inconsequential, so long as the government body as a whole is not composing or dictating the content of the invocations.
Here is an excerpt from the opinion:
To be sure, in offering the invocations the individual commissioners sometimes convey their personal alignment with a particular faith. But the Court has always looked to the activities of the legislature as a whole in considering legislative prayer. This makes perfect sense; for it is only through act of the deliberative body writing or editing religious speech that government would impermissibly seek “to promote a preferred system of belief or code of moral behavior” with selected content. There is no evidence that the Board, as a Board, had any role in any of the prayers by the individual commissioners. The record is devoid of any suggestion that any prayer in this case is anything but a personal creation of each commissioner acting in accord with his or her own personal views.
In effect, each commissioner is a free agent . . . . In other Establishment Clause contexts, the Supreme Court has stressed this element of private choice, holding that when a neutral government policy or program merely allows or enables private religious acts, those acts do not necessarily bear the state’s imprimatur. As the Supreme Court stated in Town of Greece, “[o]nce it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian.”
The Board’s legislative prayer practice amounts to nothing more than an individual commissioner leading a prayer of his or her own choosing.
The Appeals Court likewise rejected the argument that inviting the audience to participate amounts to unlawful coercion, insisting that “participation in the invocations [was] voluntary,” and emphasizing that the audience was made up of adults who “are not presumed susceptible to religious indoctrination or pressure simply from speech they would rather not hear.”
The dissenting judge disagreed on both points, finding the fact that the prayer-givers are government actors engaged in official action to be important, and found the subtle coercive effects of the commission in this case to cross the line into unlawful activity. The dissent closes with this plea for a spirit of religious welcome:
The violent sectarian tensions in the Middle East are only the most visible religious divisions now roiling the globe. Are such levels of hostility likely here? Probably not, but it behooves us not to take our relative religious peace for granted and to recognize that the balance struck by our two great religion clauses just may have played a part in it. In venues large and small, a message of religious welcome becomes our nation’s great weapon, never to be sheathed in this or any other global struggle. Believing that legislative prayer in Rowan County can further both religious exercise and religious tolerance, I respectfully dissent.
This decision is one of the first major applications of the Supreme Court’s 2014 ruling in Town of Greece, which held that sectarian government prayer is not in itself a violation of church-state separation. The interpretation in this Rowan County case lowers the constitutional bar for acceptable government prayer even further, accepting a somewhat rigid definition of unlawful coercion and broadening the notion that there is nothing constitutionally suspect about government prayers that are consistently Christian.
The Baptist Joint Committee urged the Supreme Court to reach a different conclusion in Town of Greece, in part to avoid the subtly coercive impact of prayers delivered at local government meetings where citizens attending may have business before the government body.
The 4th Circuit’s ruling this week may be a fair reading of the troubling Town of Greece ruling, but seems to expand its reach even further. Where is the constitutional line on legislative prayer now?
So long as it avoids blatant religious discrimination in choosing the prayer-giver, direct damnation of other faiths during the course of an invocation, and demonstrable penalties for any audience member who refuses to participate in the prayer, most any government policy or practice would seem to pass the test under the 4th Circuit’s reading.
