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When a County Board's Prayer Goes Too Far

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Plenty of local governments open their meetings with a quick, generic prayer from a member of the clergy. But is it different when the lawmakers themselves say “Let us pray” and then supplicate God to open everyone’s heart to the message of Jesus Christ? Does that violate the Constitution?

In a significant defeat for religious liberty, a federal appeals court has upheld a continuous practice of sectarian, public prayer by the members of a North Carolina board of county commissioners. The dissenting judge, the distinguished conservative J. Harvie Wilkinson, said the “seat of government” in the case was made to resemble “a house of worship.” The court’s majority said it was just following Supreme Court precedent.

At the start of all the meetings of the Rowan County commissioners, one of the five -- all of whom are Christians and have been as long as anyone can remember -- invites those present stand for the invocation and the Pledge of Allegiance. The commissioners take turns, but each typically opens by saying “Let us pray” or “Please pray with me.”

Then the commissioner assigned to that meeting offers a prayer that would be entirely normal and appropriate in any evangelical church.

One representative prayer quoted by the court went like this: “Let us pray. Holy Spirit, open our hearts to Christ’s teachings, and enable us to spread his message amongst the people we know and love through the applying of the sacred words in our everyday lives. In Jesus’s name I pray. Amen.”

A federal district court in North Carolina struck down the prayer practice, concluding that among other constitutional problems, it impermissibly coerced residents attending the meetings into participating in prayer.

On Monday, a divided panel of the U.S. Court of Appeals for the 4th Circuit reversed the district court. It applied the controlling Supreme Court precedent, the 5-4 decision in the 2014 case, Town of Greece v. Galloway.

The Supreme Court held there that it is in principle permissible for legislative prayer to be sectarian. The government body in the case designated local clergy to offer prayers before town council meetings, and the record showed that although no non-Christian clergy had been denied, the prayers were normally Christian. The court also held, in a plurality opinion written by Justice Anthony Kennedy, that residents weren’t coerced to participate in the prayers.

The 4th Circuit majority held that the Rowan County commissioners weren’t coercing residents to pray any more than the councilors in the town of Greece. But Judge Wilkinson, who was appointed by Ronald Reagan and when younger was frequently mentioned as a potential Republican Supreme Court nominee, strongly disagreed.

Wilkinson noted that the prayers, given by the legislators themselves, were “bordering at times on proselytization and exhortation.” They were delivered by the legislators themselves to open meetings of what he called “our most basic unit of government.” Wilkinson wrote that he had “seen nothing like” the Rowan County practice before. In effect, the place of government was turning into a church. “It cannot be right,” the judge concluded.

Wilkinson is surely correct. It’s true that if legislative prayer by clergy is permitted under the Town of Greece precedent, then logically there shouldn’t be a bright line rule against prayer by a legislature. It’s also true that the Town of Greece case held -- rightly in my view -- that the Constitution doesn’t require legislative prayers to be non-sectarian.

But the Constitution’s establishment clause, from its founding until the present, has been interpreted to prohibit coerced participation in public prayer. The Founding Fathers understood very clearly that there was a long tradition of established churches requiring attendance at public prayers and sermons.

And anyone who wants to appear before the Rowan County board of commissioners has no choice but to attend the deeply and sincerely religious prayers that open its session. The prayers include in their language not only the commissioners themselves but also everybody who is present. There is no way to opt out of the prayer if you are standing there. The Framers would have recognized this for exactly what it is: an establishment of the religious beliefs of the government.

Correctly interpreted and applied, Kennedy’s plurality opinion in the Town of Greece case would recognize this. In that opinion, Kennedy called for a “fact sensitive” inquiry. And he said that legislative prayer could not permissibly be used to “proselytize.”

Spreading the gospel is the very definition of proselytizing. That’s what one commissioner was doing in a 2007 Christmas prayer when he said, “We’d like to thank you for the virgin birth, we’d like to thank you for the cross at Calvary, and we’d like to thank you for the resurrection. Because we do believe that there is only one way to salvation, and that is Jesus Christ.”

There’s a name for spreading the gospel in an official government setting: It’s called an establishment of religion. The full 4th Circuit should rehear this case and reverse itself. If it doesn’t, the Supreme Court should take the case and clarify that the Town of Greece precedent doesn’t allow a legislative chamber to become a de facto church.

  1. Prayer of March 7, 2011.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net