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Week 28 (2017)

Week of July 10, 2017 through July 14, 2017

Nancy Lund v. Rowan County, North Carolina (Wilkinson 7/14/2017): The Fourth Circuit held that local lawmaker-led sectarian prayer ran afoul of the Establishment Clause. The court reasoned that Rowan County’s practice of opening its Board of Commissioners meetings with Christian prayer elevated one religion above all others and aligned itself with that faith by having the commissioners act as the exclusive prayer-givers. The court, on rehearing en banc, affirmed the judgment of the district court, holding the practice unconstitutional and invoking a permanent injunction against the prayer practice in Rowan County. Full Opinion

Brian C. Lee, Sr. v. Town of Seaboard (Wynn 7/14/2017): The Fourth Circuit overruled the district court’s grant of summary judgment by finding several genuine disputes of material fact bearing upon the reasonableness of an officer’s decision to use deadly force against a plaintiff by shooting at his car while the plaintiff was attempting to drive away from a mob where there was no evidence the plaintiff had committed any crime. Specifically, the court reasoned that a reasonable jury could conclude that the officer lacked a reasonable belief that the plaintiff posed an imminent threat to the officer’s safety at the time of the shooting because the officer was (1) never hit by the plaintiff’s car, which was moving less than twenty miles per hour; (2) five feet away from the car when he fired; and (3) facing the side of the passing car at the time he fired. Additionally, the officer’s admitted lack of awareness as to whether any particular pedestrians were in the car’s path, coupled with another officer’s testimony that no pedestrians were in front of the car, raised genuine issues of material fact as to whether the officer reasonably believed the plaintiff’s car posed an imminent danger to bystanders. Finally, the court found a reasonable basis for a jury to find that the officer could have avoided any danger posed by the plaintiff’s vehicle by taking cover behind a van. Accordingly, the court reversed the district court’s award of summary judgment as to the plaintiff’s allegations. Full Opinion

Highlight Case

Nancy Lund v. Rowan County, North Carolina, No. 15-1591

Decided: July 14, 2017

The Fourth Circuit held that Rowan County’s practice of lawmaker-led sectarian prayer ran afoul of the Establishment Clause. Specifically, the court reasoned that the prayer practice violated the Establishment Clause because it served to identify the government with Christianity and risked conveying a message of exclusion to citizens of minority faiths. Furthermore, because the commissioners were the exclusive prayer-givers, the court opined that the practice fell well outside the more inclusive, minister-oriented practice of legislative prayer described in Town of Greece.

Rowan County, North Carolina was governed by an elected body known as the Rowan County Board of Commissioners. Board meetings were held twice a month. At the beginning of each meeting, a prayer composed by one of the commissioners was delivered, and all those in attendance were asked to participate. These prayers were exclusively given by board members and were invariably and unmistakably Christian in content, with no other religion represented. In the midst of controversy over the practice, as well as after being notified by the ACLU of North Carolina Legal Foundation that the practice violated the Establishment Clause, several commissioners publicly announced that they would continue delivering Christian invocations.

The plaintiffs were long-time residents of Rowan County, were active in the community, and attended multiple Board meetings where they encountered the Christian prayers. They filed this action against the County asserting the Board’s prayer practice violated the Establishment Clause by delivering exclusively Christian prayers. The district court preliminarily enjoined the Board from delivering sectarian prayers, and both parties moved for summary judgment after the Supreme Court’s decision in Town of Greece v. Galloway, upholding that town’s practice of opening its legislative session with sectarian prayers. The district court, however, held that Rowan County’s prayer practice remained unconstitutional and issued a permanent injunction. On appeal, the Fourth Circuit reversed the district court’s judgment and upheld the county’s prayer practice. The court then granted rehearing en banc.

The court observed that while, as a general matter, legislative prayer is constitutional, it has certain limits. The court distinguished March v. Chambers and Town of Greece from the situation involved in this case because in those cases, guest ministers delivered the prayers, whereas the legislators themselves gave the invocations in Rowan County. Additionally, the prayer opportunity here was exclusively reserved for commissioners, creating a “closed-universe” of prayer-givers. While legislator-led prayer is not inherently unconstitutional, its nature of being led by a legislator is relevant to the constitutional inquiry because this type of prayer both identifies the government with religion more strongly than ordinary invocations and heightens the constitutional risks posed by requests to participate and by sectarian prayers. A challenge to legislative prayer must result in a fact-sensitive review of the setting in which the prayer arises and the audience to whom it is directed, as well as the pattern of prayers over time. Because the Rowan County commissioners were the sole prayer-givers and gave the prayers in their official capacity, the invocations drew exclusively on Christianity and sometimes served to advance that faith, the attendees were invited to participate, and the setting was that of a local government, the court found the combination of these elements—not any particular feature alone—threatened to blur the line between church and state to a degree unimaginable in Town of Greece. Therefore, the court held that the prayer practice in Rowan County simply goes too far past the constitutional line, and thereby violates the Establishment Clause.

The Fourth Circuit thus affirmed the judgment of the district court, holding the legislator-led prayer practice unconstitutional and invoking a permanent injunction against the prayer practice in Rowan County.

Full Opinion

Jennifer M. Greene