Monday, September 19, 2016

4th Circuit: Sectarian Invocations Led By County Commissioners Are Permissible

In a 2-1 decision today, the U.S. 4th Circuit Court of Appeals, reversing the trial court, upheld the practice in Rowan County, North Carolina Board of Commissioners of opening their meetings with an invocation led on a rotating basis by one of the commissioners.  In Lund v. Rowan County, North Carolina,  (4th Cir., Sept. 19, 2016), the majority in a 54-page opinion held that the Board's practice is constitutional under the U.S. Supreme Court's Town of Greece  decision, saying in part:
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 (see prior posting) had held that Town of Greece does not cover sectarian invocations delivered by the county commissioners themselves instead of invited clergy. The majority, however, said:
Nowhere did the [Supreme] Court say anything that could reasonably be construed as a requirement that outside or retained clergy are the only constitutionally permissible givers of legislative prayer.
Judge Wilkinson, dissenting, said in part:
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.
Charlotte Observer reporting on the decision says that the ACLU, representing plaintiffs, will ask for en banc review.