Appeals court calls North Carolina county's prayer unconstitutional

(Reuters) - A divided federal appeals court said a North Carolina county violated the U.S. Constitution by letting elected officials open meetings with Christian prayer and asking audience members to participate.

Friday's 10-5 decision by the 4th U.S. Circuit Court of Appeals in Richmond, Virginia overturned a ruling by a three-judge panel of the same court that upheld the practice. The case is likely headed to the conservative-leaning U.S. Supreme Court.

Three residents had challenged the Rowan County Board of Commissioners' practice of opening meetings with prayers composed by members, and asking those in attendance to stand and pray together.

SEE ALSO: Supreme Court strikes down Republican-drawn North Carolina congressional voting districts

Ninety-seven percent of 143 prayers in a recent 5-1/2-year period were Christian.

Writing for Friday's majority, Circuit Judge J. Harvie Wilkinson said it was not "inherently unconstitutional" for lawmakers to deliver invocations, but Rowan County violated the First Amendment's Establishment Clause by focusing on a single, preferred faith.

"The prayer practice served to identify the government with Christianity and risked conveying to citizens of minority faiths a message of exclusion," wrote Wilkinson.

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ASHEVILLE, NC - JUNE 21: A display inside Malaprop's Bookstore/Cafe in Asheville, North Carolina features books by authors who support the repeal of HB2 on June 21, 2016. Malaprop's has had authors cancel and a decline in sales due to North Carolina's HB2 legislation, commonly known as the bathroom bill, and the resulting boycott of the state by authors, athletes and tourists. (Photo by Jacob Biba for The Washington Post via Getty Images)
ASHEVILLE, NC - JUNE 21: A sign next to the men's bathroom inside Malaprop's Bookstore/Cafe in Asheville, North Carolina denounces North Carolina's HB2 legislation on June 21, 2016. Malaprop's has had authors cancel and a decline in sales due to North Carolina's HB2 legislation, commonly known as the bathroom bill, and the resulting boycott of the state by authors, athletes and tourists. (Photo by Jacob Biba for The Washington Post via Getty Images)
ASHEVILLE, NC - JUNE 21: A bulletin board inside Malaprop's Bookstore/Cafe in Asheville, North Carolina features upcoming author visits and events scheduled for the bookstore on June 21, 2016. Malaprop's has had authors cancel and a decline in sales due to North Carolina's HB2 legislation, commonly known as the bathroom bill, and the resulting boycott of the state by authors, athletes and tourists. (Photo by Jacob Biba for The Washington Post via Getty Images)
UNITED STATES - MAY 16 - Protestors gather across the street from the North Carolina state legislative building as they voice their concerns over House Bill 2, in Raleigh, N.C., Monday, May 16, 2016. House Bill 2, also known as the Bathroom Bill, which requires transgender people to use the public restroom matching the sex on their birth certificate, has received the attention of national media and the White House. (Photo By Al Drago/CQ Roll Call)
UNITED STATES - MAY 16 - Protestors gather across the street from the North Carolina state legislative building as they voice their concerns over House Bill 2, in Raleigh, N.C., Monday, May 16, 2016. House Bill 2, also known as the Bathroom Bill, which requires transgender people to use the public restroom matching the sex on their birth certificate, has received the attention of national media and the White House. (Photo By Al Drago/CQ Roll Call)
DURHAM, NC - MAY 10: The 'We Are Not This' slogan is posted at the entrances to Bull McCabes Irish Pub on May 10, 2016 in Durham, North Carolina. Debate over transgender bathroom access spreads nationwide as the U.S. Department of Justice countersues North Carolina Governor Pat McCrory from enforcing the provisions of House Bill 2 (HB2) that dictate what bathrooms transgender individuals can use. (Photo by Sara D. Davis/Getty Images)
Elaine Martin, right, listens as Chris Sgro, executive director of Equality NC, speaks during a press conference to announce filing of federal lawsuit challenging North Carolina's HB 2 law at the LGBT Center of Raleigh on Monday, March 28, 2016. Several different advocacy groups and some of the lead plaintiffs spoke at the event. (Chris Seward/Raleigh News & Observer/TNS via Getty Images)
Joaquin Carcano, center, the lead plaintiff in the case, speaks during a press conference to announce filing of federal lawsuit challenging North Carolina's HB 2 law at the LGBT Center of Raleigh on Monday, March 28, 2016. Several different advocacy groups and some of the lead plaintiffs spoke at the event. Joaquin was born a woman and is now a man. Simone Bell with Lambda Law is at left; Chris Brook with the ACLU is at right. (Chris Seward/Raleigh News & Observer/TNS via Getty Images)
TO GO AFP STORY BY BRIGITTE DUSSEAU - Transgender delegates Jamie Shier (L) and Janice Covington pose for photographs at the Convention Center in Charlotte, North Carolina, on September 4, 2012. The Democratic National Convention Committee announced Wednesday that US President Barack Obama would move his acceptance speech from the outdoor Bank of America Stadium to the indoor Time Warner Cable Arena due to predictions of thunderstorms. AFP PHOTO / Mladen ANTONOV (Photo credit should read BRIGITTE DUSSEAU/AFP/GettyImages)
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"Indeed, if elected representatives invite their constituents to participate in prayers invoking a single faith for meeting upon meeting, year after year, it is difficult to imagine constitutional limits to sectarian prayer practice."

Wilkinson distinguished prior Supreme Court decisions letting Nebraska's legislature and the upstate New York town of Greece open sessions with prayer led by clergy, rather than elected officials.

Circuit Judge Paul Niemeyer dissented, saying the majority effectively sought "to outlaw most prayer given in governmental assemblies, even though such prayer has always been an important part of the fabric of our democracy and civic life."

In a separate dissent, Circuit Judge G. Steven Agee said the majority's approach lets lawmakers "offer only a generic prayer to a generic god."

Rowan County is about 40 miles (64 km) northeast of Charlotte.

"Wilkinson's opinion should be the last word," Chris Brook, an American Civil Liberties Union lawyer representing the three residents, said in an interview. "No one should fear being discriminated against because they don't participate in prayer."

Greg Edds, the Rowan County board chairman, said in an email: "While the decision is certainly disappointing, it is not surprising. (We) will be reviewing it over the next several weeks with our legal team to decide where we go from here."

Wilkinson, considered a conservative, as well as Niemeyer and Agee are appointees of Republican presidents.

The appeals court last month ruled against President Donald Trump's revised travel ban. Moving it rightward is a priority for many conservatives.

The case is Lund et al v. Rowan County, North Carolina, 4th U.S. Circuit Court of Appeals, No. 15-1591.

(Reporting by Jonathan Stempel in New York; Editing by Tom Brown)

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