Court hears arguments over prayers at Cobb Commission

An American Civil Liberties Union lawyer on Wednesday asked a federal appeals court to stop a practice that allows predominantly Christian prayers to open Cobb County Commission meetings.

But a panel of skeptical judges did not appear ready to make such a ruling. Instead, the judges wondered how a court could divine whether God belongs to one religion or another, or to no religion at all?

A three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta pondered the issue in a case brought by seven residents represented by the ACLU and Americans United for Separation of Church and State.

In 2005, they filed suit seeking to halt Cobb’s practice because more than 70 percent of the prayers involve Christianity and many invoke the name of Jesus Christ.

ACLU lawyer Daniel Mach had barely started into his arguments when Judge Bill Pryor interrupted him, asking how courts can know when a prayer is sectarian or nonsectarian.

“What about King of Kings?” Pryor asked. “Is that sectarian?”

Stammering, Mach answered that phrase could “arguably be a reference to one God.” Mach later agreed that, in some instances, it is hard to draw a bright line of distinction.

“What about Lord of Lords?” Pryor asked again. “The God of Abraham?”

“That’s a tougher call,” Mach said, responding to the second question. “Several faiths believe in the God of Abraham.”

Pryor, a former Alabama attorney general, pressed on.

“What about the God of Abraham, Moses, Jesus and Muhammad?” he asked. “Or Heavenly Father?” he continued, noting that could refer to the Divine Trinity.

In a ruling last year, U.S. District Judge Richard Story in Atlanta allowed the prayers to continue. He said that because Cobb invites representatives of all denominations to give the prayer, the county is not unconstitutionally endorsing one religion over another.

Story did find, though, that the Cobb Planning Commission improperly chose its invocation speakers because clergy of certain faiths had been excluded.

Pryor complimented Story’s ruling and Cobb’s practice. “The County Commission here has taken a much more accommodating, but not entangling, policy,” he said.

Judge Charles Wilson followed Pryor’s line of questioning, wondering how far a county should go in regulating prayers. “As a practical matter, how do you draw the line?” he asked.

Does the county need to get a copy of a prayer before it’s given to make sure it’s not sectarian? Wilson wondered. How can this be done “without some sort of censorship?”

U.S. District Court Judge Donald Middlebrooks, a visiting judge from West Palm Beach, Fla., agreed.

If some prayers must be edited and “watered down” to make sure they are not identified with a certain denomination, “isn’t it just government prayer?”

Mach countered that the county already regulates the prayers by making sure they do not proselytize or disparage other religions. He added that federal appeals courts in Richmond, New Orleans, Chicago and San Francisco all have ruled that sectarian prayers that open official government meetings run afoul of the First Amendment.

But David Walbert, a lawyer for the county, said Congress has opened its sessions with sectarian prayers since the U.S. Senate’s first chaplain was appointed in the late 18th century. “Everything that is at issue here was clearly being done in 1789,” Walbert said.

Before the three judges heard the arguments on Wednesday, they entered the courtroom and paused, standing behind their seats. A clerk then called the court to order, ending, “God save the United States and this honorable court.”

The court is expected to issue a ruling in the Cobb prayer case in the coming months.