willjamisonEditor’s note:  On Oct. 31, 2016, the 4th Circuit Court of Appeals agreed to re-hear the case en banc.  Oral arguments are tentatively scheduled for Jan. 24-26, 2017.

By Will Jamison

On March 4, 1789, the First United States Congress met in Federal Hall in New York City.  The air was (probably) thick with dust from the street and powder from their wigs.  With the ink still drying on the U.S. Constitution, the actions of that First Congress shed light on how the founders of our nation interpreted the supreme law of the land…that is, according to our U.S. Supreme Court.

In 2012, in Rowan County, North Carolina, the air (probably) filtered and without wig powder, the Board of Commissioners continued their own tradition of opening each meeting with an invocation.  The invocation was given by a different commissioner on a rotating basis, and after asking everyone in attendance to stand was almost always a Christian prayer.  As a result, three residents of Rowan County filed a complaint against the Board, alleging the practice violated the Establishment Clause of the Constitution by affiliating the Board with a particular faith.  In that case, Lund v. Rowan County, they alleged they felt “coerced” to participate in the prayers.  They argued the prayers made them “uncomfortable,” and due to the “atmosphere” of the meetings they felt compelled to stand with everyone else.  In 2014, the District Court agreed and issued an injunction to stop the practice.  The opinion was based in part on the U.S. Supreme Court’s recent ruling in Town of Greece v. Galloway, 134 S. Ct. 1811 (2014).  However, the 4th Circuit Court of Appeals interpreted that case very differently, and completely reversed the ruling of the District Court.  It is that reversal that provides great insight into the constitutionality of prayer before meetings of elected officials.

The ruling of the 4th Circuit stems directly from a decision made on April 25, 1789.  On that day, the 1st U.S. Senate appointed Samuel Provoost as their first chaplain.  That decision, according to the Supreme Court in Town of Greece, proves the Establishment Clause does not prevent the opening of legislative sessions with prayer.  The Supreme Court stated “It can hardly be thought . . . they intended the Establishment Clause . . . to forbid what they had just declared acceptable.”  Town of Greece at 790.  In other words, the Supreme Court found the 1st Senate did not believe the Establishment Clause prevented the appointment of a chaplain or opening sessions with a prayer, otherwise they would not have approved of such things.  With this rationale, the Supreme Court found that—with certain limitations—the practice of opening legislative sessions with prayer did not violate the Establishment Clause.

In Lund, the 4th Circuit found the ruling in Town of Greece directly applicable to the Rowan County Board of Commissioners, and explored the limitations set forth in the caseThe 4th Circuit explained the “long history” of opening sessions with prayer serves to put the deciding body in a “contemplative” mood and elevate them to a “common effort.”  Thus, these prayers may be Christian, Buddhist, nonsectarian, or simply motivational.  However, there must be non-discrimination in the selection of prayer givers.  Also, the prayers themselves may not degrade people of other religions or seek to proselytize.  In Lund, the commissioners are elected by the people of Rowan County and give prayers on a rotating basis.  Each commissioner is free to give an invocation of his/her choosing.  Thus, the policy is non-discriminatory.  Additionally, the prayers—in general—asked for guidance and gave thanks, and were not degrading or proselytizing in nature.  Lastly, the 4th Circuit said the individuals were not “coerced” to participate.  The Supreme Court Justices were divided on what constituted “coercion,” with two alternate tests proposed in their opinions.  However, even under the more liberal of the two tests, the question is not one of “subjective” feelings.  Rather, one must look for “red flags,” such as singling out people for non-participation in the prayers, or indicating decisions by the Board may be tied to participation.  The 4th Circuit found insufficient evidence of such red flags.  In a world of “trigger warnings” and “safe spaces,” the Supreme Court and the 4th Circuit reminds us “adults often encounter speech they find disagreeable,” and within the bounds discussed above, “the Constitution does not guarantee citizens a right entirely to avoid ideas with which they disagree.”

Will Jamison is a litigation attorney with McGuire, Wood & Bissette, P.A. in Asheville.  His practice focuses on business and estate litigation.