Rowan County’s prayer lawsuit is two months away from oral arguments, but recent court filings show a shift away from the most significant part of an initial complaint.

When the American Civil Liberties Union, on behalf of three Rowan County residents, filed suit in 2013, the organization focused on the content of prayers.

“To plant sectarian prayers at the heart of local government is a prescription for religious discord,” the original complaint states.

In the following pages, the complaint places its largest focus on the idea that sectarian prayer affiliates Rowan County with one particular faith — Christianity. The case was brought specifically to challenge the practice of delivering sectarian prayers at meetings and challenge prayer practices under the U.S. Constitution’s first and fourteenth amendments, court filings state.

At the time, ACLU lawyers cited Joyner v. Forsyth County, in which the U.S. Fourth Circuit Court of Appeals decided Forsyth County endorsed Christianity with its prayer policy. The Joyner v. Forsyth County ruling came in 2011. In 2014, the U.S. Supreme Court’s ruled in Town of Greece (N.Y.) v. Galloway. The court’s ruling immediately injected the fact that county commissioners give prayers into Rowan’s case. By a 5-4 vote, the U.S. Supreme Court in May 2014 ruled the town’s practice of allowing volunteer chaplains to open meetings with a prayer was constitutional.

The additions and changes to arguments became apparent in Rowan’s case started immediately following the Town of Greece, N.Y. ruling. At the time, Lund v. Rowan County was still in the U.S. Middle District Court for North Carolina. ACLU lawyers won based on the changes. U.S. District Judge James Beaty based his ruling on the fact that “commissioners and only commissioners provide the prayers and commissioners direct citizens to stand and pray.”

Rowan County appealed the ruling. The case is now in Fourth Circuit Court Court of Appeals, which scheduled oral arguments last week to occur in late January.

Arguments in circuit court filing are similar, but not congruent. As ACLU lawyers focused on the Town of Greece, N.Y. ruling, Rowan County’s lawyers changed its arguments to match. In the latest by Rowan County’s attorneys, the shift is noted in the second sentence.

“This case began as a challenge to the sectarian content of the county’s legislative prayer practice,” Rowan County’s brief states. “Once the Supreme Court in Greece eliminated the basis for that challenge by recognizing that sectarian prayers are part of the historical tradition  … plaintiffs switched gears — contending that the county’s legislative prayer practice is unconstitutional because legislators, and not chaplains or clergy, offer the prayers.”

When summarizing its argument in a circuit court filing, lawyers for plaintiffs completely omit the original issue of sectarian prayer being included in content of county commissioners prayer from 2007 to 2013.

When asked about the shift, North Carolina ACLU Legal Director Christopher Brook said shifts happen frequently when court rulings occur in the middle of a case.

“It happens all the time in any hotly litigated area of the law,” Brook said. “There is always a new court ruling that is coming down.”

Brook said there’s “no doubt” coercion is a more significant part of the ACLU’s argument in the latest ruling, “but the coercion argument has been there since day one.”

“It’s not an argument that’s emerged for the first time in our briefing before the Fourth Circuit,” Brook said.

He’s right. In the first filing, coercion was mentioned, but only after sectarian prayer. Coercion gained greater prominence in court filings after the Town of Greece, N.Y. decision. Ultimately, Beaty based his ruling and permanent injunction on coercion and the identity of those giving prayers — county commissioners.

In its latest filing, ACLU attorneys contend Rowan County commissioners routinely directed Rowan County citizens to participate in prayers. Plaintiffs’ arguments include commissioners focusing prayers on the broader public instead of being for the benefit of the board itself, directing public participation in prayers and creating a hostile environment by directing attendees to participate in prayer. The plaintiffs state there’s no tradition of externally focused prayers.

“Rowan County fails to seriously grapple with the toxic and coercive atmosphere created by its board members,” the plaintiffs’ filing states.

For its part, Rowan County argues there’s no constitutional basis for distinguishing prayers offered by legislators and the prayers aren’t coercive because the public is not directed to participate, which is in direct opposition to the ACLU’s argument.

Rowan County’s filing states the Supreme Court’s decision in the Town of Greece, N.Y. doesn’t give an indication whether its decision hinged on the fact that chaplains, instead of government officials, delivered prayers.

“It is only by assuming a constitutional violation — which is the very thing at issue — that plaintiffs can argue it makes a constitutional difference whether a legislator or a chaplain offers the prayer,” Rowan County’s circuit court filing states.

By saying “let us pray” or “please pray with me,” ACLU lawyers argue commissioners intend for the audience to participate. Rowan County’s lawyers call the statements an invitation rather than a direction.

“The words from the presiding commissioners are simply an invitation for citizens to participate voluntarily in the prayer or the pledge only if they freely choose to do so — not a command that could reasonably be construed as directing citizens to participate in either activity,” Rowan County’s circuit court filing states.

Rowan County’s filing further states meeting attendees could leave the room during prayers or arrive late if offended.

Commissioners now make it explicitly clear that meeting attendees can leave before prayers. Commissioners Chairman Greg Edds gives a similar statement each meeting stating that attendees can leave. However, it’s almost always the case that the entire room of attendees participates during the prayer.

The current prayers given by commissioners also largely avoid specifically Christian words, such as Jesus. A local pastor now gives opening invocations.

Rowan County hasn’t yet spent a significant sum of money on the lawsuit. The only recorded legal costs are to county attorney Jay Dees. The most significant costs paid to Dees occurred as Rowan County first retained The National Center For Life and Liberty in the suit. Cost estimates for fees paid to Dees are less than $5,000.

Contact reporter Josh Bergeron at 704-797-4246.