How should we then pray?

After the U.S. Supreme Court declined to review two similar cases last week, state and local government officials’ right to pray before their meetings could depend on which state they’re in.

Rowan County v. Lund and Bormuth v. County of Jackson both involved lawmakers’ religious freedom. In Rowan County, N.C., the five members of the Board of Commissioners took turns opening meetings with a prayer or a moment of silence. The American Civil Liberties Union of North Carolina sued on behalf of three offended county residents. A U.S. District Court ruled in favor of the residents, but a three-judge panel of the 4th U.S. Circuit Court of Appeals reversed the decision in favor of lawmaker-led prayer. Then all of the judges on the 4th Circuit joined to overturn the panel’s decision.

The 4th Circuit explained that because the commissioners themselves said the prayers, rather than guest ministers, the action was questionable under the U.S. Constitution’s Establishment Clause, which forbids the government from favoring one religion over another or establishing a state religion.

The commissioners’ appeal to the Supreme Court explained, “[They]—as some of their counterparts have done for centuries—deliver legislative prayer themselves as a way of meeting their ‘spiritual needs [as] lawmakers,’ and ‘reflect[ing] the values they hold as private citizens.’” Now that the 4th Circuit’s ruling stands, a local chaplain will lead prayer at the meetings from now on, The Charlotte Observer reported.

Meanwhile in Michigan, the Jackson County Board of Commissioners also opened its meetings each month with a commissioner-led prayer or a moment of silence. Prayers were voluntary, and commissioners led on a rotating basis.

When Jackson County resident Peter Bormuth sued the county, a U.S. District Court ruled in favor of the commissioners’ rights. A panel from the 6th Circuit overturned that decision, but then the full 6th Circuit reheard the case and reaffirmed the District Court ruling.

The contradictory rulings in two different circuit courts means religious lawmakers lack sure footing until another case finds its way to the highest court in the land.

Justices Clarence Thomas and Neil Gorsuch disagreed with the Supreme Court’s decision not to hear Rowan County v. Lund.

“State and local lawmakers can lead prayers in Tennessee, Kentucky, Ohio, and Michigan, but not in South Carolina, North Carolina, Virginia, Maryland, or West Virginia,” Thomas wrote in the dissent. “This Court should have stepped in to resolve this conflict.”

Because circuit court decisions are not binding on each other, different parts of the country may operate under different rulings. Circuit court splits are not uncommon, and the Supreme Court does not always resolve them right away.

“One of the primary roles of the Supreme Court is to ensure that federal laws are interpreted consistently throughout the country,” said Brett Harvey with Alliance Defending Freedom, which represented Rowan County. “The public officials in North Carolina should have the same constitutional rights as the public officials in Michigan.”

In the past, the Supreme Court ruled in favor of prayers by lawmakers. In the 1983 case Marsh v. Chambers, the justices upheld the right of a state-supported chaplain to pray over legislative meetings. As recently as 2014 in Town of Greece v. Galloway, the high court ruled a town had the right to open board meetings with a clergy-led prayer.

In the Rowan County dissent, Thomas criticized the 4th Circuit’s decision in North Carolina, calling it “both unfaithful to our precedents and ahistorical.”

“People should be concerned anytime the courts begin telling people how to pray, and what they can pray, and who can pray,” said Harvey. “It’s only a matter of time before the Supreme Court will have to weigh in.”

Attorney General Jeff Sessions announces a lawsuit to protect the religious liberty of a Jewish congregation in New Jersey. Associated Press/Photo by Alex Brandon

Zoned out

The U.S. Department of Justice is warning city administrators not to use zoning codes to frustrate the plans of congregations to purchase, build, expand, or occupy their houses of worship.

Case in point: For 13 years the Orthodox Jewish congregation Valley Chabad of Woodcliff Lake, N.J., has tried to purchase land for a new synagogue in its residential neighborhood or expand at its existing location. Restricted in the search by a doctrine prescribing the distance members can walk for Shabbat services, the congregation claims in a lawsuit filed last year that the city zoning board has intentionally hobbled its efforts.

The Justice Department filed its own lawsuit June 13 against Woodcliff Lake in defense of the Orthodox Jewish congregation. And, to emphasize the point, the department announced the launch of the Place to Worship Initiative, a campaign to warn municipalities against abusing their zoning codes and to inform congregations of their rights.

U.S. Attorney Craig Carpenito said the town imposed a substantial burden on Valley Chabad’s “religious freedom by repeatedly meddling in its attempts to purchase property in the area and citing subjective and misleading reasons to justify denying its zoning application.”

The use of zoning codes to obstruct the development of houses of worship became so endemic by 2000 that Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) by unanimous consent. The law “bars land use regulations that impose a substantial burden on religious exercise without a compelling justification,” according to a Justice Department statement announcing the Place to Worship Initiative.

Created to regulate when, where, and how commercial and residential developers can build, zoning codes make little space for nonprofit organizations, particularly places of worship. After all, why encourage development that does not add to the tax base or alters the character of a residential neighborhood?

Congregations, unaware of the protection federal law provides against municipal abuses, often abandon new plans when told zoning restrictions prohibit them. Worse, they sometimes walk away from projects into which they have already poured substantial time and money, said John Mauck, an attorney with the Chicago law firm Mauck and Baker, which specializes in RLUIPA law.

Similar cases in New York and Dallas highlight the resistance Orthodox Jews face when trying to establish synagogues in their neighborhoods. Muslims trying to build mosques have experienced similar pushback from city officials, sometimes at the behest of their constituents. And in Laurel, Md., city council members created zoning codes once they discovered a church planned to convert a building in the city’s gentrified downtown into a nonprofit coffee shop and ministry to the city’s homeless.

Mauck told me he welcomed the Justice Department’s involvement and would participate in a panel discussion in September when the Place to Worship Initiative hosts a forum in Chicago. Getting involved at the ground level requires expertise and time currently lacking in many U.S. attorney’s offices that adjudicate RLUIPA claims, Mauck said. He’s hopeful the initiative will narrow that gap.

Christians should strongly support development in their neighborhoods by other religious groups, said Mauck, who is a Christian. When his law firm represented a Muslim congregation trying to build a mosque, neighbors put pig statues in front yards to dissuade the Muslims’ efforts. But Christians who support church development in other countries, Mauck said, should be “willing, as Americans, to set an example that everyone’s free to have their place of worship and we will support their right to do so and share the gospel.” —Bonnie Pritchett

Attorney General Jeff Sessions announces a lawsuit to protect the religious liberty of a Jewish congregation in New Jersey. Associated Press/Photo by Alex Brandon

Back on campus

The University of California, Berkeley, will adopt a new policy on student groups after settling a discrimination lawsuit with Young Americans for Liberty. The group for politically conservative students sued after the college denied it student organization status on the grounds the school already had a libertarian student group. Alliance Defending Freedom represented the students and argued UC Berkeley’s decision was unconstitutional viewpoint discrimination. The settlement, announced Monday, requires the school to implement a viewpoint-neutral policy for approving student organizations.

“Because these students stood up and challenged the status quo, the marketplace of ideas is freer at Berkeley today than it was last year,” ADF legal counsel Caleb Dalton said. —Lynde Langdon