The lawsuit challenging the past practice of Carroll County commissioners leading prayers at their meetings came to a close Tuesday when a U.S. magistrate judge signed a consent decree, nearly two weeks after the board voted to settle.
The current Board of Commissioners’ handling of the case had come under scrutiny, with several locals speaking out against the settlement in a commissioners meeting, by protesting outside another meeting and through written op-eds.
The board unanimously voted Aug. 29 to settle the lawsuit, filed in 2013, by paying $125,000 to the American Humanist Association. The lawsuit, originally launched by two Carroll County citizens, argued the sectarian prayers led by the 59th Board of Commissioners were unconstitutional.
The current, 61st board voted to settle the suit after commissioners cited concerns of losing taxpayer money should they move forward with the case and lose, which the county attorney said would likely occur based on previous court cases.
In the consent decree of Bruce A. Hake, et al. v. Carroll County, the county is ordered to pay $125,000 to the plaintiffs’ attorneys, the American Humanist Association, within 60 days. The county must also pay “nominal damages” of $1 to each plaintiff for violating their rights under the 1st and 14th Amendments of the U.S. Constitution, according to the decree. The plaintiffs include the American Humanist Association, Bruce A. Hake, Cornelius M. Ridgely, Lauren Graybill and Judy Smith, the decree states.
“The agreement firmly establishes the wall of separation between church and state at Carroll County Board of Commissioners meetings by permanently preventing commissioners from delivering prayers at the opening of commission meetings,” Sarah Henry, communications associate for the American Humanist Association wrote in an email Tuesday. “The American Humanist Association is thrilled with the resolution of this case and will continue to work to protect religious freedom for all across the country.”
Furthermore, the consent decree establishes that the Board of Commissioners may not: allow a public official or employee to deliver a prayer at a public meeting; request, encourage, or signal audience members to participate in prayer at public meetings; or promote prayer in official policies and practices. The board may continue its current practice of starting meetings with a moment of silence, the decree states.
The decree defines prayer as “a verbal communication with a purported deity or deities that seeks guidance, assistance, or intervention of any kind, or a blessing.”
The 59th Board of Commissioners, consisting of Haven Shoemaker, Richard Rothschild, Robin Frazier, David Roush and Doug Howard, had adopted governing principles that included starting board meetings with a prayer, led by one of the commissioners on a rotating basis.
Unhappy with the current board’s choice to settle the lawsuit, Frazier protested outside the county office building Sept. 5, along with about 15 other residents who disagreed with the board. Most cited freedom of religion and freedom of speech as their reasons for siding against the board’s decision.
Rothschild and Howard have written columns for the Carroll County Times voicing their displeasure, with Howard’s column appearing in Wednesday’s print edition. Del. Shoemaker, R-District 5, along with state Sen. Justin Ready, R-District 5, penned a letter to the board Sept. 5, joining the voices of dissent. Roush died last month before the commissioners voted.
But Michael Meyerson, a professor at the University of Baltimore School of Law, tends to agree with the analysis of Carroll County Attorney Tim Burke — that given the Court of Appeals for the Fourth Circuit in December 2017 ruled in favor of the plaintiffs in Lund v. Rowan County, North Carolina, a very similar legislative prayer case, Carroll was unlikely to prevail if its suit went to trial.
“Betting on the court doing what it’s already done is the safer bet,” Meyerson said.
And although both Ready and Shoemaker argued that a more conservative-leaning Supreme Court might be willing to consider the case on appeal, Meyerson pointed out there is currently no evidence to suggest the court has an appetite for taking on cases involving legislative prayer.
“The Supreme Court has taken very few of them because they are really kind of messy,” Meyerson said. “Because prayer is both beautiful and can be divisive, and the Supreme Court really doesn’t want the job of telling people which prayer is good and which prayer is divisive.”
Even when the court has ruled on the issue, as in 2014 in the case of Town of Greece v. Galloway — in which the Supreme Court ruled the town council of Greece, New York, could continue to invite clergy in to offer prayers so long as they were inclusive — there have been substantial differences from Bruce A. Hake, et al. v. Carroll County, Meyerson said.
The town council of Greece was inviting members of the clergy in offer prayers at the beginning of meetings, similar to the way congressional chaplains offer prayers in the U.S. Senate and House of Representatives, according to Meyerson. In Carroll, county commissioners elected to the 59th board were offering sectarian prayers themselves.
“When they lead the prayer, it’s the government’s prayer,” Meyerson said. “It’s not the job of government to do favored prayer. It has to be community-led prayer. That was the genius of the framers [of the Constitution].”