Prayers in government meetings have received a lot of attention in North Carolina. The ACLU has sued the Rowan County Commission, and another group has threatened to sue the Union County Commission for what they say are “sectarian prayers.”
As the U.S. Supreme Court is taking up a similar case from New York next week, we explore what the case could mean for North Carolina.
The Supreme Court case is called Greece v. Galloway. It was first filed in 2008 by Susan Galloway and Linda Stephens, residents of the town of Greece, N.Y., who say the town violated the U.S. Constitution by opening its board meetings with sectarian prayers. Those are prayers that make mention of one specific religion. The majority of prayers specifically mentioned Christian beliefs, including things like “Jesus,” “Your Son,” and the “Holy Spirit.” The lawsuit argues the town’s policy violated the “establishment clause” of the First Amendment, which prohibits making any law respecting an establishment of religion.
A federal appeals court agreed. But there have been many cases like Greece versus Galloway in other parts of the country with different outcomes, creating what Charlotte School of Law Professor Dan Piar calls a “circuit split.”
“A lot of these different circuits have been asked to rule on this question,” he says, “but they’ve come to different conclusions among themselves, so that the law in North Carolina may end up looking different than the law in Minnesota on that issue.”
And, in fact, the Fourth Circuit Court of Appeals, which covers North Carolina, ruled on the issue in 2011 in a case involving the Forsyth County Commission. That ruling, like the one in the Galloway case, says sectarian prayers in government meetings violate the establishment clause.
But appeals courts in other circuits have upheld the constitutionality of sectarian prayers in government meetings.
“And that’s often the situation where the Supreme Court will accept the case in order to resolve the disagreement within the lower courts,” Piar says.
The high court will hear arguments in Greece versus Galloway next Wednesday. But here in North Carolina, the case involving sectarian prayers in Rowan County Commission meetings is moving forward in U.S. District Court. The ACLU sued the Commission in March over its practice of opening meetings with prayers. The lawsuit says 97 percent of prayers at Rowan County Commission meetings since 2007 have made reference to one religion or set of beliefs over others.
Here’s an example of one of those prayers, delivered by Commissioner Jon Barber on December 3, 2007:
“…as we get ready to celebrate the Christmas season, we’d like to thank you for the Virgin Birth, we’d like to thank you for the cross at Calvary, and for the resurrection, because we do believe that there’s only one way to salvation, and that’s Jesus Christ. We ask all these things in the name of Jesus. Amen.”
Salisbury resident Nan Lund is one of the plaintiffs in the case. “That’s not welcoming,” she says. “It’s not inviting to people to come in to those meetings and express their views, or just listen to what the issues are, and to feel that they are welcome to come and participate.”
She says sectarian prayers can discourage people from coming to meetings, because Commissioners ask those in attendance to stand during the prayers. For those who don’t feel comfortable standing, she says, the only options are to stay seated or leave the room, and, she says that distances them from other people there.
The judge in the case has prohibited the Commission from opening its meeting with sectarian prayers until the case is decided.
But it isn’t the content of the prayers that’s the main issue in this case or in the Galloway case, for that matter, says Elon Law professor Scott Gaylord. He says the context is more important. In other words, are the prayers being used to promote or disparage one set of beliefs?
“And only if the context shows the intent to exploit the prayer opportunity can you then go look at the content and the sectarian references and see if that somehow violates the establishment clause,” he says.
Gaylord makes the argument in a friend-of-the-court brief in the Galloway case written on behalf of local governments in several states whose prayer policies have been challenged, including Rowan County.
The Supreme Court isn’t expected to rule on Greece versus Galloway until at least next spring. Even then, the issue of legislative prayer may not be completely settled, according to Constitutional Law professor Dan Piar.
“I think the goal is usually there to bring about a final resolution,” he says, “but I would say the Supreme Court, historically, does not have an especially good track record to prevent that sort of thing happening.”
Piar says one way that could happen is if the Court rules sectarian prayers are constitutional, but doesn’t clearly define what a sectarian prayer is. Some local governments would then test the boundaries, he says, and the cases could come up before some of the same appeals court judges.
“We could wind up with different federal circuits having different approaches to ‘what is sectarian prayer, how do we define that?’”
And then the issue could be back at the Supreme Court.