WASHINGTON — The U.S. Supreme Court has declined to hear an appeal of a Fourth Circuit ruling that declared that the Rowan County Board of Commissioners may not “elevate[] one religion above all others,” namely Christianity, by presenting exclusively Christian prayers at public meetings. Two justices, Clarence Thomas and Neil Gorsuch, dissented and said that they would have accepted the case.

“This Court’s Establishment Clause jurisprudence is in disarray,” Thomas wrote. “… “I would have granted certiorari in this case. The Fourth Circuit’s decision is both unfaithful to our precedents and ahistorical. It also conflicts with a recent en banc decision of the Sixth Circuit.”

“While the Fourth Circuit stated that a ‘combination’ of factors made the board’s prayers unconstitutional, virtually all of the factors it identified were present in Town of Greece (the 2014 Supreme Court case). The Fourth Circuit noted that the board’s prayers were typically Christian and occasionally promoted Christianity at the expense of other religions. But so did the prayers in Town of Greece,” he contended.

Thomas noted that legislative prayer has been a part of the fabric of America from its inception.

“Prior to Independence, the South Carolina Provincial Congress appointed one of its members to lead the body in prayer. Several
states, including West Virginia and Illinois, opened their constitutional conventions with prayers led by convention members instead of chaplains,” he outlined.

“The historical evidence shows that Congress and state legislatures have opened legislative sessions with legislator-led prayer for more than a century,” Thomas continued. “In short, the Founders simply ‘did not intend to prohibit a just expression of religious devotion by the legislators of the nation, even in their public character as legislators.'”

Read the dissent in full here.

As previously reported, the American Civil Liberties Union (ACLU) and ACLU of North Carolina Legal Foundation (ACLU-NCLF) had filed suit against the Rowan County commissioners in March 2013, complaining that their invocations have asserted that “there is only one way to salvation, and that is Jesus Christ,” and thank the Lord for the “virgin birth,” the “cross at Calvary” and “the resurrection.”

“I want my local government to be open and welcoming to people of all beliefs,” Nan Lund, a local resident who was among three plaintiffs named in the suit, stated in a news release announcing the legal challenge. “But when officials begin a public meeting with prayers that are specific to only one religious viewpoint, I feel unwelcome and excluded.”

In July 2013, federal Judge James A. Beaty Jr., nominated to the bench by then-President Bill Clinton, sided with the ACLU and the three complainants, ordering the commissioners to end their Christian prayer practice while the case moves forward in court.

Two years later, Beaty issued his final decision, declaring the prayers predominantly in Jesus’ name to be unconstitutional.

“The practice fails to be nondiscriminatory, entangles government with religion, and over time, establishes a pattern of prayers that tends to advance the Christian faith of the elected commissioners at the expense of any religious affiliation unrepresented by the majority,” he wrote.

Beaty pointed to the aforementioned Supreme Court ruling in Greece v. Galloway, which approved city council prayers in Greece, New York that were predominantly—but not solely—Christian. Beaty asserted that Rowan County’s practice was different because the prayers were only Christian since its commissioners all identify as Christians.

However, in September 2016, the Fourth Circuit Court of Appeals used Greece v. Galloway to uphold the commission’s prayers. It disagreed with Beaty’s interpretation of the high court decision.

“In essence, the district court treated the Supreme Court’s jurisprudential silence on lawmaker-led prayer as conclusively excluding legislators from being permissible prayer-givers to their own legislative bodies,” wrote Judge G. Steven Agee, nominated to the bench by then-President George W. Bush.

“On a broader level, and more importantly, the very ‘history and tradition’ anchoring the Supreme Court’s holding in Town of Greece underscores a long-standing practice not only of legislative prayer generally but of lawmaker-led prayer specifically. Opening invocations offered by elected legislators have long been accepted as a permissible form of religious observance,” he said.

The ACLU consequently appealed to the full Fourth Circuit of 15 judges, which agreed to hear the case en banc. The court ruled 10-5 in July 2017 that while the commission may present prayers during public meetings, they cannot be exclusively Christian.

“The great promise of the Establishment Clause is that religion will not operate as an instrument of division in our nation,” wrote Judge Harvie Wilkinson. “Consistent with this principle, there is a time honored tradition of legislative prayer that reflects the respect of each faith for other faiths and the aspiration, common to so many creeds, of finding higher meaning and deeper purpose in these fleeting moments each of us spends upon this earth.”

“Instead of drawing on this tradition, Rowan County elevated one religion above all others and aligned itself with that faith. It need not be so,” he continued. “As the history of legislative invocations demonstrates, the desire of this good county for prayer at the opening of its public sessions can be realized in many ways that further both religious exercise and religious tolerance.”

As previously reported, contrary to the Fourth Circuit ruling—and noted by Justice Thomas in his dissent—last June, the Sixth Circuit Court of Appeals upheld the predominantly Christian prayers of the Jackson County Board of Commissioners, finding that they do not violate the Establishment Clause of the U.S. Constitution.

It noted that “[s]ince the founding of our Republic, Congress, state legislatures, and many municipal bodies have commenced legislative sessions with a prayer,” and likewise pointed to the Greece ruling for support.

“At bottom, [the Plaintiff] has shown he was offended by the Christian nature of the board’s prayers. But ‘[o]ffense … does not equate to coercion,’” the majority wrote. “Jackson County therefore did not ‘engage in impermissible coercion merely by exposing [Plaintiff] to prayer [he] would rather not hear and in which [he] need not participate.’”

“As one of Jackson County’s commissioners stated, ‘Commissioners, as individuals, have a right to pray as we believe.’ Preventing Jackson County’s commissioners from giving prayers of their own choosing detracts from their ability to take ‘a moment of prayer or quiet reflection [to] set their mind to a higher purpose and thereby ease the task of governing,’” it declared.

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