Case Background

In a decades-long tradition, the commissioners of Rowan County, North Carolina have followed the example of America’s very first Congress—as well as the current Congress and every Congress in between—by opening its sessions with legislative invocations. 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.

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

First Liberty Institute Legal Action

First Liberty stepped in to represent the Rowan County commissioners after a U.S. district court ruled against them in 2015, working with co-counsel to defend the commissioners’ right to give invocations.

On September 19, 2016, the U.S. Court of Appeals for the Fourth Circuit held that the Rowan County commissioners can continue to open their court sessions with invocations.

According to the Court’s opinion:

“The Board’s legislative prayer practice falls within our recognized tradition and does not coerce participation by nonadherents. It is therefore constitutional.” (p. 54)

“We have always endeavored to ensure the county complies with the law when solemnizing meetings and we are pleased the county’s efforts are in compliance,” said Hiram Sasser, Deputy Chief Counsel for First Liberty.

On March 22, 2017, the Fourth Circuit reheard the case en banc, which means that the case was reheard by the full slate of the Fourth Circuit’s judges. The case had previously been heard by a three-judge panel. On July 14, 2017, the Fourth Circuit issued its en banc opinion. In a 10-5 decision, the court held that the Rowan County commissioners’ legislative prayers are unconstitutional. First Liberty is considering an appeal to the U.S. Supreme Court.

The Constitutionality of Legislative Invocations

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

Various Supreme Court rulings have affirmed this practice.

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

More than 30 years later, in Town of Greece v. Galloway, the Supreme Court revisited the topic, ruling yet again that legislative invocations are constitutional. That case involved both volunteer clergy invited from every house of worship in town, as well as town residents who were not clergymen.

For Immediate Release: July 14, 2017

Contact: Abigail Doty, adoty@firstliberty.org
Cell: 469-237-9102, Direct: 469-440-7598

Appellate Court Prohibits Legislative Meetings from Opening with Invocation by Government Officials

RICHMOND, VA—Today, the United States Court of Appeals for the Fourth Circuit decided 10-5 to prohibit First Liberty Institute clients, Rowan County, NC, Commissioners, from opening commission meetings with an invocation by government officials. This decision comes three years after the Supreme Court of the United States ruled that legislative meetings may open with a prayer given by local religious leaders even if all the prayer givers are of the same faith.
“While we are disappointed in the Fourth Circuit’s decision to ban invocations before legislative meetings contrary to Supreme Court precedent, we are encouraged that the split in the vote on the Fourth Circuit demonstrates the need for Supreme Court review on this issue,” said Mike Berry, Deputy General Counsel for First Liberty Institute.
First Liberty Institute is one of the law firms representing Rowan County in this matter and is also representing Jackson County, Michigan in a similar matter that is currently pending before the United States Court of Appeals for the Sixth Circuit.


To arrange an interview, contact Abigail Doty at adoty@firstliberty.org or by calling 469-440-7598 (office) or 469-237-9102 (cell).

To download this press release, please click here.