The United States Court of Appeals for the Fourth Circuit ruled against county commissioners' right to open legislative meetings in Rowan County, North Carolina with invocations by a vote of 10-5 on Friday.
First Liberty Institute, a law firm representing Rowan County, was obviously disappointed in the result, but not completely gutted because the case could end up at the feet of the Supreme Court.
"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," Mike Berry, Deputy General Counsel for First Liberty, said in a statement.
A similar situation is unfolding in Jackson County, Michigan. In 2013, a plaintiff sued the county for holding monthly legislative invocations he argued violated the U.S. Constitution’s Establishment Clause. A federal district court initially ruled in favor of the county, but in 2017 the United States Court of Appeals for the Sixth Circuit reversed the ruling. It is currently pending before the latter panel.
Legislative invocations have precedence on the Supreme Court, as First Liberty explains.
The tradition of legislative invocations has been in place in America since the nation’s earliest days, and the Supreme Court has also upheld the practice in two important cases: Marsh v. Chambers (1983), which upheld invocations by a chaplain who was an officer of the legislature and paid with public funds, and most recently in Town of Greece v. Galloway (2014), which upheld the ability of the town of Greece, New York, to open its town board meetings with an invocation offered by clergy.