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Civil Rights – Court Allows Prayers by County Commissioners

Lund v. Rowan County, N.C. (Lawyers Weekly No. 001-143-16, 73 pp.) (Agee, J.) No. 15-1591, Sept. 19, 2016; USDC at Greensboro, N.C. (Beaty, J.) 4th Cir.

Holding: Although elected county commissioners, all of whom are Christian, lead invocations opening each meeting of the board of commissioners, and invite the public to stand and join in prayer, these practices do not violate the First Amendment’s Establishment Clause; in a 2-1 decision, a 4th Circuit panel reverses a district court decision that held the county’s prayer practices unconstitutional.

Town of Greece Case

The Rowan County, N.C., Board of Commissioners opens its public meetings with an invocation delivered by a member of the board. The district court determined that practice violates the Establishment Clause of the First Amendment. Under the Supreme Court’s most recent decision explaining legislative prayer, Town of Greece v. Galloway, 134 S. Ct. 1811 (2014), we find the board’s legislative prayer practice constitutional and reverse the judgment of the district court.

Clarifying its earlier holdings, the Supreme Court in Town of Greece disavowed a requirement that legislative prayers must be neutral and reference only a generic God to comply with the Establishment Clause. The court held that the prayers offered on behalf of the town, although almost exclusively Christian, did not evidence any pattern of denigration or proselytization. The court concluded that the prayer practice as a whole served only to solemnize the board meetings.

Relatedly, the court also determined there was no constitutional defect arising from the fact that the invited prayer-givers were predominantly Christian, and that the Constitution did not require the town to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing.

Following Town of Greece, both parties here correctly acknowledge that sectarian legislative prayer, as a general matter, is compatible with the Establishment Clause. What remains in dispute is whether the board’s practice of the elected commissioners delivering such prayers makes a substantive constitutional difference. The district court found this feature largely dispositive.

In view of this country’s long and varied tradition of lawmaker-led prayer, the district court’s judicial wall barring elected legislators from religious invocations runs headlong into the Supreme Court’s acknowledgement that any test adopted must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.

Here, the board’s legislative prayer practice amounts to nothing more than an individual commissioner leading a prayer of his or her own choosing. The board’s legislative prayer practice falls within our recognized tradition and does not coerce participation by nonadherents. It is therefore constitutional. The district court erred in concluding to the contrary.

The judgment of the district court is reversed and remanded with directions to dismiss the complaint.


Wilkinson, J.: When a seat of government begins to resemble a house of worship, the values of religious observance are put at risk, and the danger of religious division rises accordingly.

Rowan County’s prayer practice featured invocations week after week, month after month, year after year, with the same sectarian references. To be sure, Town of Greece ruled that sectarian prayer is not by itself unconstitutional. But the issue before us turns on more than just prayer content, the primary concern in Town of Greece. Whereas guest ministers led prayers in that case, it was public officials who exclusively delivered the invocations in Rowan County. Those prayers served to open a meeting of our most basic unit of government, a local board of commissioners that passes laws affecting citizens in the most daily aspects of their lives. The prayers, bordering at times on exhortation or proselytization, were uniformly sectarian, referencing one and only one faith though law by definition binds us all.

I have seen nothing like it. This combination of legislators as the sole prayer-givers, official invitation for audience participation, consistently sectarian prayers referencing but a single faith, and the intimacy of a local governmental setting exceeds even a broad reading of Town of Greece.

The parties have not cited any legislative prayer decision combining the particular speakers, audience involvement, prayer content, and local government setting presented here. Rowan County’s counsel conceded during oral argument that this case is without precedent. I am left to wonder what limits, if any, to sectarian invocations at meetings of local government appellants would be prepared to recognize.

The legislative prayer practice here pushes every envelope. I would not welcome this exceptional set of circumstances into the constitutional fold without considering its implications. A ruling for the county bears unfortunate consequences for American pluralism, for a nation whose very penny envisions one out of many, a nation whose surpassing orthodoxy belongs in its constitutional respect for all beliefs and faiths, a nation which enshrined in the First and Fourteenth Amendments the conviction that diversity in all of its dimensions is our abiding strength.

Believing that legislative prayer in Rowan County can further both religious exercise and religious tolerance, I respectfully dissent.

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