By Andie Foley
andie.foley@salisburypost.com

The U.S. Supreme Court has declined to take the Rowan County Board of Commissioners’ appeal of a lawsuit over sectarian prayer.

The case began in March 2013, when the national ACLU Program of Freedom of Religion and Belief and the ACLU of North Carolina filed a lawsuit challenging commissioner-led, Christian prayer practices at the start of every meeting.

The ACLU filed the case on behalf of three Rowan residents: Nan Lund, Liesa Montag-Siegel and Robert Voelker.

Rowan’s case was handled by the National Center for Life and Liberty, a nonprofit legal ministry based out of Florida.

Commissioner prayer practices were declared unconstitutional in 2015 by a district court in North Carolina. Then, in 2016, a three-judge panel found them constitutional by a 2-1 count.

The ruling wasn’t to last. In June of the following year, the entire 4th Circuit Court of Appeals found the practices unconstitutional by a count of 10-5.

An appeal to the Supreme Court was then the board’s only option, which all five members voted in favor of in September 2017.

The Supreme Court’s Thursday denial prohibits commissioners from leading their bimonthly meetings’ opening prayers. They are still free to have prayer led by a paid chaplain or invited clergy, as two similar Supreme Court cases have previously approved these practices.

But the restriction only applies to legislators in five states: Virginia, West Virginia, Maryland, North Carolina and South Carolina, said Barbara Weller with the National Center for Life and Liberty.

“Legislators in every other state may still pray themselves,” she said.

Vice Chairman Jim Greene called the court’s decision “disappointing.”

“It seems that it is just another point of limiting the rights — in this case of the commissioners, specifically —  to follow their particular religious beliefs,” he said. “The country has a history of prayer in opening sessions. They still do it on a statewide basis. They do it in Congress. … The rights of the commissioners to pray seem to be stymied at this point.”

Lund, the lead plaintiff in the case, said the the lawsuit was merely about making Rowan County more welcoming to people of all beliefs.

“We are so glad that the Supreme Court has let this ruling stand,” said Lund. “Everyone should be able to attend public meetings and raise concerns with government officials without having to violate or be judged by their religious beliefs.”

County Attorney Jay Dees said the county thought its appeal had merit based on findings in a similar case: Town of Greece v. Galloway, which allowed for the New York town’s prayer practices.

Used as a distinguishing factor is that town of Greece council prayers were led by “guest ministers,” a practice the Rowan County board has now adopted with chaplain-led prayers.

Two associate justices, Neil Gorsuch and Clarence Thomas, dissented the Supreme Court decision, saying they would have heard Rowan County’s case.

Chairman Greg Edds said that this was “a little unusual.”

In his dissension, Thomas said that the court’s “Establishment Clause jurisprudence is in disarray.”

“Sometimes our precedents focus on whether a ‘reasonable observer’ would think that a government practice endorses religion,” he said. “Other times, our precedents focus on whether a government practice is supported by this country’s history and tradition.”

The Establishment Clause was the the basis of the ACLU case as it prohibits government from establishing a state religion or endorsing any one religion over the other.

As Rowan County Commissioners were all Christian, the majority of their prayers included references to “Jesus,” “Christ” or the “Savior.”

But the board did not require commissioners to profess any particular religion, said Thomas.

Edds said that the commission was “profoundly disappointed” that the court didn’t take the opportunity to clarify its confusing stance on legislator-led prayer.

He, like Greene, said that this type of prayer is perfectly legal and happens all across America — “just not in Rowan County and not in the five states covered by the 4th Circuit’s flawed ruling.”

“Our case was the perfect chance for the country’s highest court to clean up the confusion surrounding the opposing opinions recently handed down by the 4th and 6th Circuit Court of Appeals, but the nation still waits,” he said. “Meanwhile, until the Supreme Court agrees to settle those differences the five states within the Fourth Circuit are forced to operate with a different set of rules than the other 45 states.”

With two dissenting justices and similar cases still waiting for a decision, Dees says that the county is still evaluating what next steps can be taken, if any.

Will the county continue with chaplain-led prayer? Will it revise its prayer policies, or will it wait for decisions in other cases?

The board is waiting for consultation from its legal council to decide, with one more pressing concern lingering.

The denial of the case may make the county responsible for court fees incurred by the ACLU, said Greene.

“This typically ends a case when the Supreme Court denies it,” said Dees. “If this the end of the road for us, how do we resolve the ACLU’s claim for fees and costs? Our outside council will have to advise the commission.”

Weller said that this was indeed the end of the road for Rowan’s prayer case. She said Rowan County’s responsibility for and the cost of ACLU court fees are yet to be determined.