4th Circuit En Banc: Rowan County's Invocation Practice Violates Establishment Clause

In Lund v. Rowan County, North Carolina, (4th Cir., July 14, 2017), the U.S. 4th Circuit Court of appeals sitting en banc held by a 10-5 vote that the prayer practices of the Rowan County Board of Commissioners violates the Establishment Clause. Judge Wilkinson’s 42-page majority opinion reads in part:

We conclude that the Constitution does not allow what happened in Rowan County. The prayer practice served to identify the government with Christianity and risked conveying to citizens of minority faiths a message of exclusion. And because the commissioners were the exclusive prayer-givers, Rowan County’s invocation practice falls well outside the more inclusive, minister-oriented practice of legislative prayer described in Town of Greece. Indeed, if elected representatives invite their constituents to participate in prayers invoking a single faith for meeting upon meeting, year after year, it is difficult to imagine constitutional limits to sectarian prayer practice.

The great promise of the Establishment Clause is that religion will not operate as an instrument of division in our nation. 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. 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.

Judge Motz, joined by Judges Keenan and Harris, filed a concurring opinion emphasizing that the majority’s holding is consistent with Supreme Court precedent in Marsh and Town of Greece cases.

Judge Niemeyer, joined by Judge Shedd, filed a dissenting opinion arguing that the majority opinion “actively undermines the appropriate role of prayer in American civic life.”  Judge Agee also filed a dissenting opinion which was joined by Judges Niemeyer, Traxler, Shedd, and Diaz, arguing that the majority opinion is “irreconcilable” with Marsh and Town of Greece.  Charlotte Observer reports on the decision.