On Jan. 5, the Buncombe County Board of Commissioners may replace an official prayer before its meetings with a moment of silence, according to County Attorney Michael Frue. Contrary to Frue’s original announcement, the commissioners have not yet made a decision.
“I probably erred by implying they had taken action or made a decision,” Frue told Xpress. “I shouldn’t have assumed they would necessarily follow my advice. No action has been taken, and we’re looking at several options.”
The board discussed the matter during closed session at its meeting on Tuesday.
“I just apprised them of the status of current legal cases, and they discussed some possibilities,” Frue added.
The case foremost in the county’s mind is in Forsyth County, where a lawsuit over the county’s pre-meeting prayer has not gone the county’s way. Frue said that Forsyth’s policy and Buncombe’s are similar enough for him to be concerned. Specifically, while the Constitution forbids the establishment or endorsement of a state religion, the vast majority of invocations end up being Christian.
An announcement sent by Frue to local government officials on Wednesday read:
“Beginning with its January 5, 2010 meeting the Buncombe County Board of Commissioners have determined that it will no longer include an invocation as an agenda item and the Chair will simply ask for a moment of silence before opening the meeting.”
In that announcement, Frue described the situation faced by Forsyth, and his legal reasoning for recommending a change in the current policy.
“On November 9, 2009 a magistrate judge with the US District Court for the Middle District of NC issued a recommendation of judgment against Forsyth County as the practice violates the Establishment Clause of the First Amendment of the United States Constitution,” Frue wrote, noting that while Forsyth is still fighting the decision, the legal costs for a defeat would be considerable.
“The Forsyth case is based on facts establishing that out of 33 invocations prior to meetings only 7 did not contain some reference to Jesus, Jesus Christ, Christ, Savior, or the Trinity, and none of those 33 invocations invoked another deity associated with any faith other than Christianity. Such statistics are no doubt common here in the Bible Belt and I believe are also fairly representative of such a sampling before our Board.”
Under existing law, prayers before the opening of a government body must be non-sectarian in nature and not endorse one faith or denomination over another. That’s likely to be unattainable, Frue asserts.
“I believe that selecting clergy or other invocators at random and leaving the invocation content up to them will likely always lead to violations,” he concludes.
The decision is already attracting a sometimes angry backlash. Outgoing Asheville City Council member Carl Mumpower criticized the announcement, saying in an e-mail release: “It is my hope the new council demonstrates more courage and conviction than others may muster in defending the right to pray in political chambers. Anything less mocks both the Constitution and those who value their freedom of religion and the opportunities found within.”
He asserted that Council’s current invocation policies are in line with the First Amendment.
“Council has no procedures or laws determining how Council members pray — and the prayers vary significantly among the members. Our prayers are not controlled or orchestrated events and those in attendance are free to respond, or not, as their values lead them to.”
Conservative activist Don Yelton was even more blunt in his condemnation, and sent out an e-mail calling on citizens to oppose the step.
“I am reminded of what some [Jewish] friends told me, they did not know how fast it could happen. Hitler,” he wrote. “We are knocking on the doors of hell right now. Please get your pastors to get awake and take a stand.”
The full text of Frue’s announcement is below.
—David Forbes, staff writer
Dear Mayors and Managers –
David Gantt has asked me to pass along some of my thoughts and research regarding invocations made at the opening of public meetings before local governments. Forsyth County is currently defending its practice and policy of opening invocations before meetings of its Board of Commissioners. On November 9, 2009 a magistrate judge with the US District Court for the Middle District of NC issued a recommendation of judgment against Forsyth County as the practice violates the Establishment Clause of the First Amendment of the United States Constitution stating that “Congress shall make no law respecting an establishment of religion”, together with the Free Exercise Clause, (”… or prohibiting the free exercise thereof”), these two clauses make up what are commonly known as the “religion clauses” of the First Amendment. Joyner v. Forsyth County, North Carolina, M.D.N.C. 1:07CV243 (2009). This judgment has not been adopted by the presiding judge and Forsyth has filed an objection to the magistrate’s recommendations, however the magistrate’s decision is consistent with case law. Also, note that the recommendation is for an award of the nominal costs plus the plaintiffs attorneys’ fees which I understand come to about $100,000.
The Forsyth case is based on facts establishing that out of 33 invocations prior to meetings only 7 did not contain some reference to Jesus, Jesus Christ, Christ, Savior, or the Trinity, and none of those 33 invocations invoked another deity associated with any faith other than Christianity. Such statistics are no doubt common here in the Bible Belt and I believe are also fairly representative of such a sampling before our Board.
Forsyth policy called for the clerk to invite prospective speakers in November each year out of the yellow pages, internet and local Chamber and then schedule them to deliver invocation at particular meetings. Neither the board nor clerk engaged in any prior inquiry, review or involvement in the content of any prayer to be offered. The invocation is not listed as an agenda item and it takes place shortly before the opening gavel that officially begins the meeting. Despite this policy designed to insulate the Board from the “personal speech” of the speaker the invocation practice is found to be “government speech” because the central purpose of the program is the business of government. The government plays a central role in selecting and scheduling the speaker and even over the content, although to a lesser extent. This is so given that a board member delivered the invocation on 3 occasions reflecting some control over invocation content.
Therefore, the magistrate determined that these prayers were sectarian invocations that violate the First Amendment to the United States Constitution. Again, this is consistent with existing law. Leading cases on the issue are: Marsh v. Chambers, 463 U.S. 783 (1983) involving non-sectarian legislative prayer; and Wynne v. Town of Great Falls, S.C., 376 F.3d 292 (4th Cir. 2004) holding that town council violated the Establishment Clause in opening its sessions with prayers that frequently contained references to Jesus Christ, thus advancing one religion over all others. The rule remains that such invocations must be nonsectarian and that any such “divine appeal be wide-ranging, tying its legitimacy to common religious ground” and “transcend denominational boundaries and appeal broadly to the aspirations of all citizens.” Marsh.
I believe that selecting clergy or other invocators at random and leaving the invocation content up to them will likely always lead to violations. The Marsh case demonstrates that a legislative body may generally “invoke Divine guidance for itself before engaging in its business,” but it cannot “exploit” this opportunity for prayer “to affiliate the government with one specific faith or belief in preference to others.” Here, in order to avoid running afoul of the Establishment Clause, great care must be taken to have rather Unitarian invocations directed at the governing body only for guidance in its endeavors and deliberations.
Beginning with its January 5, 2010 meeting the Buncombe County Board of Commissioners have determined that it will no longer include an invocation as an agenda item and the Chair will simply ask for a moment of silence before opening the meeting.
For specific advice on how your boards might handle this issue you should discuss the matter with your city or town attorney, but if you have any questions please let me know.