The First Amendment prohibits establishment of an official religion in the U.S. When a government body steers too close to that, federal courts have stepped in to decide what's legal and what's not. The federal appeals court in Richmond, Virginia, now is considering a case from Rowan County, northeast of Charlotte. At issue is whether county commissioners should be allowed to lead Christian prayers before their meetings. WFAE's David Boraks has been following the case, and talked with All Things Considered host Mark Rumsey.
RUMSEY: David, how did the Rowan County Commission's prayer practices wind up at the appeals court?
BORAKS: Commissioners used to start meetings with a prayer, led by one of the commissioners. It was almost always an overtly Christian prayer - about 97 percent of the time over 5½ years. Then three residents sued to stop the practice in 2013, with the help of the American Civil Liberties Union.
While the case is in court, commissioners have had someone else lead prayers - a local public safety chaplain.
RUMSEY: This is at the federal appeals court level now. What happened at the lower courts?
BORAKS: A federal district court judge here in North Carolina sided with the residents. He ruled that the practice crossed the line on separation of church and state.
But then a three-judge panel of the federal appeals court reversed that ruling - siding with Rowan County. So the ACLU asked to have the case heard by all 15 members of the Fourth Circuit Court of Appeals.
That hearing was Wednesday, and it lasted about an hour and a half. It was a real back-and-forth - the judges asked lots of questions of lawyers for both sides.
RUMSEY: Why does the county think it's OK to have commissioners lead prayers before their meetings?
BORAKS: This is the most important case about prayer at public meetings since 20-14, when the U.S. Supreme Court ruled that prayers before local board meetings in the town of Greece, New York, were legal.
Rowan County's lawyer Allyson Ho said the Rowan commission's practice is practically identical and is part of a tradition going back to the nation's founding.
HO: The Supreme Court has expressly approved every feature of the county's legislative prayer practice save one - that legislators pray.
BORAKS: But one of the judges quickly challenged Ho.
JUDGE: Aren't you overlooking the crucial feature that we all know in Town of Greece it was, um, the guest ministers who were delivering the prayers and here it's the county commissioners themselves ... and don't the county commissioners more than any guest ministers represent the very embodiment of the state?
BORAKS: Ho argued again that the Greece case allows sectarian prayer - no matter who delivers it. She also noted that it's a longstanding tradition in half the counties in the Fourth Circuit zone, which stretches from the Carolinas to Maryland.
Another lawyer, Elbert Lin, represented more than two dozen states who filed briefs in support of the county. He agreed with Ho that since pre-meeting prayers are traditional and widespread, people know they're not meant to coerce or proselytize.
LIN: The question is what would the reasonable person who was sitting in a particular Rowan County Commission meeting be familiar with? And I think the fact that we have found that 144 of 319 counties in the fourth circuit use exclusively lawmaker-led prayer, that phrases like let us pray, please stand, or will you stand, are quite common.
That brought challenges from several of the judges. One asked how it wouldn't be coercion if someone felt pressure to join in or stand during the prayer, so they wouldn't stand out as different in front of elected officials about to vote on their rezoning.
RUMSEY: I understand the residents and the ACLU also think the Greece decision supports their case. What's their argument?
BORAKS: That’s right. The big difference is that in Greece, it’s not elected officials leading the prayers. Here’s the ACLU’s Chris Brook in an exchange with Judge Allyson Duncan:
CHRIS BROOK: One of the key factors here is the fact that over a five and a half year period the only people who were praying in Rowan County were elected officials. JUDGE DUNCAN - that goes back to Judge Gregory’s question, and mine to a certain extent - it's the speaker, not the content? CHRIS BROOK - That is the primary argument that we're making, Judge Duncan.
RUMSEY: So what happens next?
BORAKS: The 15-judge panel will take all the filings they've gotten and this week's oral arguments and appoint a judge to write an opinion. In a case like this, it could take months. We may not hear anything until the end of the year or early 2018.
