In The Public Arena

Liberty Institute Defends Legislative Prayer at Federal Appeals Court   



At Issue: The constitutionality of legislative prayer

Status: Ongoing


In conjunction with co-counsel, Liberty Institute is representing five elected commissioners from Rowan County, North Carolina, who were sued in 2013 by the American Civil Liberties Union (ACLU) for opening their sessions with an invocation, a practice called “legislative prayer.” After a U.S. district court ruled against the Rowan County commissioners in 2015, Liberty Institute stepped in to appeal the decision before the U.S. Court of Appeals for the Fourth Circuit. 

Case Background  

In a decades-long tradition, the commissioners of Rowan County, North Carolina have followed the example of the America’s very first Congress—as well as the current Congress, and every Congress in between—by and opening its sessions in legislative prayer. The responsibility of offering the invocation rotates between the five commissioners, who are elected to serve on the Rowan County Board of Commissioners by their fellow citizens every four years.

When it becomes a commissioner’s turn to offer the invocation, they can choose to pray, or to defer. If they choose to pray, they are permitted to use whatever words they choose, a choice that is always consistent with their personal faith’s beliefs and prayer practices.

In March of 2013, the American Civil Liberties Union (ACLU) sued Rowan County for this practice, claiming that because all commissioners self-identified as Christian, their traditional method of opening sessions in legislative prayer excluded all other religions, and must therefore be stopped.

Liberty Institute Legal Action

Liberty Institute stepped in to represent the Rowan County commissioners after a U.S. district court ruled against them in 2015. With co-counsel, Liberty Institute is now defending the commissioners’ right to pray. The case is currently before the U.S. Court of Appeals for the Fourth Circuit. 

“The make-up of the prayers in Rowan County is a direct result of democracy,” said Ken Klukowski, Senior Counsel for Liberty Institute. “The people of Rowan County freely choose their elected leaders, and the commission allows all the elected leaders an equal chance to pray without any regard to their personal faith.” 

“Just because the five people currently elected happen to all claim the same faith, does nothing to say that five people of a different faith might not be elected in the future,” he added 

The Constitutionality of Legislative Prayer

In 1789, the First Congress drafted the First Amendment in the Bill of Rights, and also passed resolutions creating the salaried positions of Senate Chaplain and House Chaplain—in the very same week. These chaplains were paid in part to open congressional sessions in prayer—a practice that continues in the United States Congress to this day.

Various Supreme Court rulings have affirmed this practice. 

A challenge to legislative prayer in Nebraska made its way to the United States Supreme Court in 1983. The Supreme Court ruled in Marsh v. Chambers that legislative prayer by a paid, ordained clergyman, as established by the First Congress in 1789, did not violate the Constitution. 

More than thirty years later, in Town of Greece v. Galloway, the Supreme Court revisited the topic, ruling, yet again, that legislative prayer is constitutional. That case involved both volunteer clergy invited from every house of worship in town, a well town residents who were not clergymen. 

The ACLU’s lawsuit against Rowan County is the first case to challenge legislative prayer since the Supreme Court’s Town of Greece v. Galloway decision in 2014.

“The Supreme Court in 1983 upheld a prayer practice where, for sixteen years, every single prayer was offered only by a single Presbyterian minister,” Klukowski noted. “To call that constitutional, while denying elected officials who change every four years the ability to pray according to their personal faiths, makes no sense. The Supreme Court has said no such thing, which is why we believe the court should rule in favor of the County.”

Legal Documents

Court Brief at the U.S. Court of Appeals for the Fourth Circuit 



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