The prayer vote was a difficult one for me because of the clear legal case. I’m not happy with most of the court cases the last 50 years, and the liberalization of our court system. That is one of the primary reasons behind the decline of our culture. I see what liberal court rulings our doing to our culture and how the media is jamming it down their throats and it turns my stomach.
Having said that, facing a lawsuit, we needed to face the courts and their past rulings as they are. Legal precedent in federal trial and appeals courts, as well as the US Supreme Court, drives the outcomes of these court cases; not what any individual believes or how they would like them to be.
Sectarian prayers by government bodies to start their meetings have been ruled unconstitutional in the US 4th Circuit Court. To replay the same case over again, in federal trial and appeals court that are becoming more liberal with each passing year, will not change the outcome and would prove to be costly to the district. Forsyth County, NC was sued by the ACLU on the same issue, and lost in the 4th Circuit Court of Appeals. Forsyth County appealed to the US Supreme Court and the Court refused to hear the case. Game over. Forsyth had to pay $300,000 for their own legal costs and $248,000 to cover the ACLU’s legal bill.
Here is an excerpt of an opinion that came from the SC State Attorney General’s office, advising our school board to stop the sectarian prayers.
Thus, the Joyner v. Forsyth case makes clear the prayers of a deliberative body must be non-sectarian... the body must be proactive in insuring the prayers be non-sectarian.
Here is what one of our attorneys advised us. His firm is representing the Lexington 5 school district, which is engaged with the Freedom From Religion Foundation in a lawsuit right now. He is an expert on government prayer cases.
First, I wish to urge the Board, at its upcoming meeting, not to act to simply confirm or validate the present practice at Board meetings of allowing a student from the "School of the Month" to offer what has virtually always in the past has been a sectarian vocation. Officially endorsing such a practice would leave the Board without a creditable defense in any Establishment Clause (1st Amendment) legal challenge.
Those urging the board to stay the course all said you have to talk to the ACLJ (American Center for Law), the top Christian legal defense organization in the country -- they will defend you, take your case, and advise you. We talked to the ACLJ, and this is what they wrote us:
The ACLJ wrote: Although we believe the Joyner v. Forsyth case is flawed in several respects, it is none the less binding law in Maryland, North Carolina, South Carolina, Virginia and West Virginia. Any legislative body within these states should follow the 4th circuit parameters discussed herein and ensure that any legislative prayer is "non-sectarian in both policy and practice."
Suffice it to say, the ACLJ wanted no part in defending our school district and past practice of a student led-sectarian prayer.
Here is what the school board's liability insurance company (South Carolina School Board Insurance Trust) wrote the Superintendent on the issue:
"Numerous attorneys have advised that a lawsuit dealing with the promotion or observance of religion at school functions is indefensible… we cannot fund fighting such lawsuits based on personal beliefs; to make what maybe a popular community stance; or to make a political statement.
Intentional actions that one knowingly engages in that are contrary to the law and court rulings can be grounds to withdraw or deny insurance coverage… individual members of the board and school administration may be sued and left responsible for their own defense, and settlement cost that generally includes plantiff's legal expenses."
The legal court precedent, top attorneys in the state on the issue and even our liability insurance company urged us to change what the board was doing. I studied the top 12 prayer cases in the country, talked to numerous attorney’s and legal defense foundations and in the end agreed their advice was sound, so I voted to adopt a non-sectarian prayer to Heavenly Father, Lord, God Almighty.
I presented these court cases, legal opinions from the attorney general/ our lawyers and from groups like the ACLJ during the school board debate on the issue. I concluded the solution wasn’t to replay the same court cases and lose in a devastating way, so I could show voters I “fought” it and they would vote for me in 4 years.
I put “fought” in quotes, because it wouldn’t have been a fight. The district would have been dragged into court, then hit with a mile of legal precedent in their favor, and then fell to the ground -- a one punch knockout. The lower courts must follow the legal precedent of the 4th Circuit Appeals Court which has ruled sectarian prayers by a government body are unconstitutional.
The notion the 4th Circuit Court would somehow hear our case, be mesmerized by the same facts, and reverse their past rulings was improbable. The notion the US Supreme Court would do that was even more remote. President Obama has put 6 justices on the 4th Circuit Court and the past five years. He will add more to that court, and probably put another liberal on the US Supreme Court.
The solution is twofold: One, elect conservative US Senators and a President who will appoint and confirm conservative judges. Get the courts leaning to the right again, then bring those cases back up and aiming for legal reversals.
The second solution is to follow the law, thereby putting yourself in a creditable position to defend yourself if you happened to be sued. The school board did that taking the advice of the state attorney general, our lawyers and groups like the ACLJ. We adopted a non-sectarian prayer to Heavenly Father, Lord, God Almighty.
The Freedom From Religion Foundation is unhappy with our new policy of non-sectarian prayer too. They want to end any kind of invocation at the start of government meetings. We disagree on that point. This is why we have a federal court system.
Myself, I believe prayer at the start of deliberative bodies such as a school board, county council or state legislature has its roots in the first session of the US Congress. It is a 200-plus year tradition that I support. Our new policy of a non-sectarian prayer is constitutional as well as in line with state law, and we believe the state of South Carolina stands along side that of the Pickens County School Board on this issue.