by Jacob Comello, Civitas Intern
North Carolina might be thrust into the national legal spotlight once again as the Rowan County Board of Commissioners decided in September to appeal their case concerning prayer during public meetings to the US Supreme Court. The Board’s long-held tradition of having a County Commissioner deliver invocations before the business of a meeting has been the subject of a protracted court battle since March 2013, when Rowan County resident Nancy Lund and the ACLU of North Carolina first challenged the practice in the Middle District Court of North Carolina. The District Court found the practice unconstitutional, but an appeal to a three judge panel of the Fourth Circuit Court of Appeals rendered a reversal of that ruling. Lund and the ACLU of NC scored a victory this July when the Fourth Circuit issued a 10-5 ruling in their favor after an en banc hearing. That decision, hailed as “a great victory for the rights of all residents to participate in their local government without fearing discrimination” by ACLU of NC Director Chris Brook, did not deter Rowan County’s legal team, who held firm that the tradition was protected and were eager to defend their cause again.
Rowan County’s appeal, if accepted, will give the nation’s highest court a chance to revisit some classic “public prayer” quandaries, such as what qualifies for the label of a “coercive” religious practice and what difference the identity of a prayer giver might make in a public situation. These are all dense, meaningful questions, and how the court decides to answer these questions may bring more into focus the boundary lines drawn for all Americans by the Establishment Clause.
However, parts of the Fourth Circuit’s majority opinion, authored by Judge J. Harvie Wilkinson, might raise a few eyebrows. One practice criticized by the majority was that some of the prayers “preached conversion” and were thus coercive. Part of a prayer cited by the court went like this: “Father, I pray that all may be one as you, Father, are in Jesus, and He in you.” While preaching conversion during public prayer is nominally reprimanded in the 2014 Town of Greece v. Galloway ruling, a sincere plea for unity to one’s God seems difficult to even loosely interpret as a command to convert. Thus far, there is a lack of Supreme Court guidance on what specifically counts as proselytization in public prayer.
Also questionable is Judge Wilkinson’s assertion for the majority that lawmaker-led prayer (as opposed to prayers led by a visiting chaplain or minister) “both identifies the government with religion more strongly than ordinary invocations and heightens the constitutional risks posed by requests to participate and by sectarian prayers.” In Marsh v. Chambers (1983), the practice of letting a chaplain compensated by the state deliver a prayer to a legislative body was upheld. Compared to that precedent, a lay commission member leading a prayer might strike some as a less visible alignment of religion with government, if at all.
The weaknesses and strengths of Wilkinson’s opinion can be debated to no end, but one thing is for certain: If the Supreme Court grants review some important Establishment Clause conundrums will get some much needed clarity. Specifically, lawmaker-led prayer, a topic historically untouched by the Supreme Court, will finally come under its microscope.