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Court rules against Morrisey, NC county in legislative prayer lawsuit

The 4th U.S. Circuit Court of Appeals issued a ruling Friday, deeming Rowan County, North Carolina’s prayer practices before its county commission meetings to be unconstitutional.

The ruling comes as a loss for West Virginia Attorney General Patrick Morrisey, who had filed a friend of the court brief on behalf of a 13-state coalition backing Rowan County. The court ruled in a 10-5 vote that the county infringes on citizens’ rights under the First Amendment of the U.S. Constitution when commissioners begin the meetings by offering prayers.

Citing recent U.S. Supreme Court cases, Judge J. Harvie Wilkinson wrote that, because the commissioners recited the prayers themselves and did not bring in guest ministers, and 97 percent of the 143 prayers surveyed were Christian in nature, the practice violates the Establishment Clause of the First Amendment.

“The principle at stake here may be a profound one, but it is also simple,” Wilkinson, a Ronald Reagan appointee, wrote in the majority opinion. “The Establishment Clause does not permit a seat of government to wrap itself in a single faith. But here elected officials took up a ministerial function and led the political community in prayers that communicated exclusivity, leaving members of minority faiths unwilling participants or discomforted observers to the sectarian exercises of a religion to which they did not subscribe. The solemn invocation of a single faith in so many meetings over so many years distanced adherents of other faiths from that representative government which affects the lives of all citizens and which Americans of every spiritual persuasion have every right to call their own.”

Commenting on the ruling, Curtis Johnson, a spokesman for Morrisey, said he hopes to see the case advance to the U.S. Supreme Court.

“We are disappointed in the court’s decision, however we remain hopeful that a similar case in the 6th U.S. Circuit Court of Appeals will yield a different outcome and aid in pushing the case toward the U.S. Supreme Court,” he said. “Legislative prayer is weaved into the fabric of our nation and West Virginia has a strong interest in preserving religious liberty for generations to come at the state and local level.”

Chris Brook, director of the American Civil Liberties Union of North Carolina, said the ruling is a win for those who wish to engage in local government without religious interference.

“This ruling is a great victory for the voting rights of all residents to participate in their local government without fearing discrimination or being forced to join in prayers that go against their beliefs,” he said in a statement. “We are very pleased that the full Fourth Circuit has upheld a bedrock principle of the First Amendment: that government should not be in the business of promoting one set of religious beliefs over others.”

Before the case made it to the court of appeals, a district court had ruled the prayer format unconstitutional, before a panel of the circuit judges reversed that ruling.

At the time of the reversal, Morrisey issued a statement on the victory.

“Legislative prayer is a proud tradition in West Virginia,” he said. “This free expression of faith has been a cornerstone for many leaders who seek guidance from above in helping our state endure its struggles and reach new heights.”

Morrisey’s brief detailed the prevalence of lawmaker-led prayer throughout the country. He found that six county commissions in West Virginia start their meetings with a prayer led by the commissioner and that Charleston, Parkersburg and Wheeling open their city council meetings with prayer.

He also found that 166 of 319 counties in the five states that fall within the 4th Circuit — Maryland, North Carolina, South Carolina, Virginia and West Virginia — have prayer at meetings led by a board member.

Attorneys general from Alabama, Arizona, Arkansas, Florida, Indiana, Michigan, Nebraska, Nevada, Ohio, Oklahoma, South Carolina and Texas joined Morrisey in backing the lawsuit.

In a dissenting opinion, Judge G. Steven Agee, a George W. Bush appointee, wrote that the fact commissioners delivered prayers themselves does not denote a violation of anyone’s First Amendment rights, and that there is no evidence to suggest any sort of religious or political discrimination related to prayer participation.

“There is no indicia [indication] of discrimination in this record. None,” he wrote. “Nor is there any suggestion that the Board has or would bar any commissioner from offering a prayer faithful to the commissioner’s own traditions, regardless of his or her faith. Without such evidence, we cannot conclude that the Board’s prayer practice unconstitutionally limits the universe of prayer givers in violation of the Establishment Clause.

“As a practical matter, citizens attending a Board meeting who found the prayers objectionable were not without recourse; they could arrive after the invocation, leave for the duration of the prayer, or remain for the prayer without participating.”

Reach Jake Zuckerman at, 304-348-4814 or follow @jake_zuckerman on Twitter.

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