Conflicting rulings on prayer may open door to SCOTUS

CINCINNATI, Ohio (BP) -- Two conflicting 2017 court rulings in cases challenging public prayer at government meetings increase the chance of a U.S. Supreme Court hearing on the issue, religious liberty advocate Ken Klukowski said today (Sept. 7).

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The Board of Commissioners in Jackson County, Mich., may legally open its meetings with sectarian prayers, the U.S. Court of Appeals for the Sixth Circuit said Sept. 6. The decision is contrary to a July 14 ruling of the U.S. Court of Appeals for the Fourth Circuit, which said the Rowan County (North Carolina) Board of Commissioners' similar practice was "unconstitutionally coercive."

Klukowski, senior counsel at First Liberty Institute representing both boards, said the split creates the precise climate to encourage the Supreme Court to hear an appeal of the ruling in the Fourth Circuit against Rowan County.

"The Fourth Circuit decision was 10-to-5 against prayer, and the Sixth Circuit decision was 9-to-6 in favor of prayer," Klukowski told Baptist Press today (Sept. 7). "So that makes (14) federal appeals judges who say this is permitted by the establishment clause of the Constitution, and (16) federal appeals judges who say no it's not. That is the perfect example of the type of case where the justices of the Supreme Court say we really need to take this and establish a nationwide rule of law on the issue."

Rowan County plans to decide in late September whether to appeal the decision, Klukowski said.

"If Rowan County chooses to seek review, that really makes this a top-tier candidate for the Supreme Court to take to make a national decision," he said. "Regardless of which way that goes, we're grateful for the victory in the Sixth Circuit, and believe that we would have a good chance, or that we would be optimistic of our chances of a victory for Rowan County, if the Supreme Court were to take the case."

First Liberty President and CEO Kelly Shackelford also expressed optimism after the favorable ruling for Jackson County, Mich.

"Now we have two ... courts -- which covers numerous states across the United States -- disagreeing about this important tradition really that goes back hundreds of years in our country," Shackelford said in a video First Liberty released Sept. 6. "The experts say that the odds are very, very high that this case is now going to be on its way to the Supreme Court, and this is great momentum to get there."

In Jackson County, individual commissioners offer invocations on a rotating basis and are free to act according to their own consciences by delivering either an invocation or offering a moment of silence, First Liberty said. In 2013 a plaintiff sued, alleging that the invocations violated the U.S. Constitution's Establishment Clause.

Jackson County won the case at its first hearing, but lost on the plaintiff's appeal, according to a case summary at firstliberty.org. The county won its subsequent appeal to the Sixth Circuit Court, which heard the case June 14.

Regarding Rowan County, the question before the court was whether the commissioners' practice of inviting the audience to join them in sectarian prayer was coercive. The American Civil Liberties Union challenged the practice in court and won.

Previous courts have found such prayers to be constitutional, First Liberty said. In the 1983 case of Marsh vs. Chambers, and Town of Greece vs. Galloway in 2014, "the Supreme Court found invocations before government meetings to be fully consistent with the Constitution and an important part of America's history and heritage," First Liberty said in its release.

Diana Chandler is Baptist Press' general assignment writer/editor. BP reports on missions, ministry and witness advanced through the Cooperative Program and on news related to Southern Baptists' concerns nationally and globally.
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