John Rustin | March 3, 2016 | SHARE: 
This week, NC Family president John Rustin talks with David Gibbs, III, president and general counsel for the National Center for Life and Liberty, about the continuing legal battle over Rowan County, NC’s public invocation policy, which was recently heard by the Fourth Circuit Court of Appeals.
INTRODUCTION: David is President and General Counsel of the National Center for Life and Liberty. He is an accomplished trial attorney, who has authored five books, including Understanding the Constitution.
David is the lead defense attorney for Rowan County, North Carolina, whose public invocation policy is being challenged in court by the American Civil Liberties Union (ACLU). The case has made it all the way up to U.S. Court of Appeals for the Fourth Circuit, which recently heard oral arguments. We’ll be talking today with David about the Rowan County case, how the oral arguments went, and when we can expect a decision from the Fourth Circuit.
JOHN RUSTIN: For those who may not be familiar with the Rowan County case, tell us briefly about the county’s long-standing public invocation policy, which has been a target of the ACLU even before this lawsuit was filed?
DAVID GIBBS, III: Rowan County, as far back as they can remember, 70-plus years in their archives, has had a moment at the beginning of their meetings where they allow commissioners to solemnize the beginning of their meeting. They can do this with a moment of silence, or a word of prayer, or a recitation, but it’s that invocation, that beginning policy moment, that has been challenged by the ACLU. And what they did is they initiated litigation against the county, and the county has been defending its policy. But the policy is similar to what other counties do across the state. It’s something that has historically been part of government meetings in the United States of America really since the founding of our country. But the ACLU has really focused on the fact that in their opinion it’s just too Christian, there’s too many mentions of Jesus, and they have been really harassing and attempting to bully the county for many years now.
JOHN RUSTIN: The ACLU filed this lawsuit against the Rowan County and their prayer policy back in March 2013. And the case is known as Lund v. Rowan County, NC. Why do you think the ACLU feel inclined to go after counties like Rowan and other municipalities and government agencies who open their meetings with a word of prayer?
DAVID GIBBS, III: I can tell you what the ACLU says. They have very good attorneys on their side, and the North Carolina ACLU is based there in Raleigh, but what they are saying is basically they believe it’s unconstitutional for really any type of religious reference, but this case really focused on prayers in the name of Jesus. When you say, “In Jesus name I pray, Amen,” [the ACLU argues] you’re creating some difficulty. Just so folks understand, from a legal perspective there are really three models that open government meetings. Model number one is you have a chaplain, the same person that does it all the time. Model number two, you invite outside guests, and these would be pastors, ministers, other clergy from the region to come in. Or, model number three is you have the commissioners or the elected officials themselves doing the invocations or the opening prayers. Rowan County uses that number three model, but the ACLU is taking the position that that particular model is a problem, as well as the fact that it was just too overtly pro Jesus in the statements that were being made by various commissioners.
JOHN RUSTIN: It’s interesting to compare that with the North Carolina State Legislature, where in the Senate there is a chaplain who typically prays on a daily basis to open sessions in prayer, quite often ending those prayers in Jesus name. In the House, there has been a history recently of members of the Chamber actually being invited to pray, and those prayers may vary quite a bit because of the make-up of the House. Those represent really two of the different models that you’ve talked about, and I have not seen the ACLU attempt to sue the State Legislature yet. I wouldn’t be surprised, frankly, if they attempted to do that in the future, but to date they have not pursued the members of the General Assembly.
DAVID GIBBS, III: I think there are a couple of reasons for that. Number one, the ACLU’s very smart, they’re targeting an individual county with the hopes they won’t have the resources or the ability to stand. That’s where organizations like ours that come in and provide pro-bono legal representation are able to give them a defense that they might not otherwise be able to afford or budget. But also what I think the ACLU is hoping is to get a win at this level, and then go to the North Carolina Legislature, and say you’ll have to change your policy. And so there’s a lot of strategy involved in those kind of things, and the ACLU is very good at looking for what they would call “The low-hanging fruit,” or the places where they might be able to get a victory, and then force it on for example the Legislature or even the United States Congress.
JOHN RUSTIN: And for exactly that reason, we’re so appreciative that you are where you are and that you are able to step in, oftentimes I know in a pro-bono fashion, represent cities, counties, municipalities, other clients so that the ACLU can’t just take advantage of a county that may not have a significant budget and would just relent as opposed to standing firm as Rowan County has done in this case. And so we’re really grateful for you being there.
Now this has been a four or five year legal battle for the Rowan County Commission. Before we talk about the Fourth Circuit hearing in the case, tell us a little about how the lower courts ruled, and how did it get up to the Fourth Circuit Court of Appeals?
DAVID GIBBS, III: It’s sort of interesting because Rowan County had a pending case before the trial court in North Carolina, Judge Baity, and Judge Baity was selected, we believe, by the ACLU because he’s never really ruled in favor of a prayer policy. And so they had a judge that they felt would be friendly to their argument, and so the case was pending before Judge Baity, and then actually the United States Supreme Court took a prayer case. So on behalf of Rowan County and number of other government agencies, we actually went up to the Supreme Court as amicus and argued that these prayer policies should be upheld. That was a case where the Supreme Court upheld that model of the outside ministers, and laid down a number of rules and guidelines that many perceive to be very pro-prayer, pro-history. It was a very good ruling from the United States Supreme Court. So, we were hopeful actually that the court in North Carolina would look at the U.S. Supreme Court ruling and dismiss the case. Unfortunately, he did not, he looked at it, and said “Well, I see some loopholes,” and he found some ways to say we still think the policy in Rowan County is a problem, and so he ruled against the county. And at that point the county had to make a tough decision, there’d been some elections, some new officials, but they voted unanimously to appeal to the Fourth Circuit. And the importance of this case, John, is this now the first case after the United States Supreme Court ruling in the Town of Greece decision to really interpret that ruling and to implement it in a real-world way. And so it’s very important to see if the ACLU will be successful in trying to narrow the impact of that ruling, or what we’re hoping for is the ability of that case to be read exactly as it says and that these policies should be constitutional and upheld. And so it will have a huge shadow effect across the nation as other courts will see how the Fourth Circuit handles it.
JOHN RUSTIN: Very interesting. As we mentioned earlier, the Fourth Circuit heard oral arguments in the Rowan County prayer case on January 27. Considering the distinctions between the Town of Greece case and this case, what question is really pending before the Fourth Circuit? What is the issue that they are considering?
DAVID GIBBS, III: The ACLU radically changed their arguments in this case because their original argument that the name Jesus was unconstitutional has already been struck down by the Supreme Court. So, what they sort of flipped to is well, you may have the right to pray, but you’re doing it in too much of a proselytizing manner, and you’re putting pressure on people in attendance. And so they really took a shift in strategy, and instead of arguing that you cannot pray, they sort of argued that you’re doing it with too much coercion, and that was sort of the focal point. You know, you’re asking people to stand up, or you’re asking people to bow their heads, or you’re doing things in some way that we believe is coercive where you’re forcing these adults in attendance to participate in the prayer. So, the argument took a fairly radical shift, and again the ACLU has fairly good attorneys, and they’re reading what the Supreme Court said, and so they’re trying to find a way to say, “While the Supreme Court said prayers may be allowable, you’re doing it the wrong way.” And that’s really what the Fourth Circuit focus was upon. Now, so folks understand, the Fourth Circuit covers the Carolinas, Virginia, Maryland, it’s underneath the United States Supreme Court, it’s a very powerful court, and you draw three judges, and you don’t really know the judges you get till the day you’re there. And so there was a lot of prayer that went into that we would receive judges that, from our opinion, would be fair-minded toward the case. We drew a good panel, and the three of them asked a lot of poignant questions on both sides. But we’re very optimistic that in light of the Supreme Court ruling, in light of the arguments that were made, and in light of what Rowan County has done, we’re expecting a favorable ruling out of the Fourth Circuit. And we would certainly ask the listeners to be praying towards that end.
Our expectation is that probably by the summer we should be getting a ruling from the Fourth Circuit. And then at that point decisions would be made. If it’s in favor of Rowan County, we would be pleased with the victory, and the ACLU would have to decide whether they choose to appeal. You have two appeal routes—these are both discretionary. One would be to the full Fourth Circuit, where all the judges of the court your arguments, or you could appeal to the United States Supreme Court. If Rowan County is denied what we believe is their right to open their meetings as they deem best, we would have to evaluate whether to appeal, and the county would have to make that determination. But everybody has got their eyes on the Fourth Circuit, and how this court— the first Appeals court to look at this prayer issue since the Supreme Court ruling—interprets it, and if they’re going to take a real strong position on what can or can’t be done, or whether they take what we believe the Supreme Court intended—a very open and freedom-oriented position that elected officials do have the ability to pray over the meetings according to their faith. And one thing, John, I just wanted to mention, the accountability in a system like that is tied to the voters. I mean if people elect a Muslim, or if they elect a deist or if they elect a Christian, the commissioners are praying according to their tradition, and so it’s really very much a voter-oriented approach. Let the people decide who they want to be their elected official, and let those elected officials then proceed to open meetings as they deem best. And we also need to remember that we’re all adults. I mean if somebody says, “You know what, I’m just really offended by any prayer whatsoever,” they can certainly step outside, they can cover their ears, and they don’t have to listen. I think we need to recognize in a diverse pluralistic society there’s always gonna be differing viewpoints, and sometimes everybody needs to grow up just a little bit, and let’s all be adults in the room and be willing to accept the divergent viewpoints. So our hope again is that the Fourth Circuit will rule positively and defend the actions of Rowan County, and uphold them as constitutional.
JOHN RUSTIN: Well we certainly hope and pray the same.
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