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Agenda Item Summary Sheet
Item No: 23
Meeting Date: December 2, 2009
Item Title:
Town Attorney John Leidy - Discussion of moment of silence/prayer at opening of BOC
meetings
Item Summary:
At the December 2nd Board of Commissioners meeting, Town Attorney John Leidy will
discuss opening Board meetings with a prayer. Please see Attorney's Leidy's comments
below.
Number of Attachments: 0
Specific Action Requested:
Provided for Board discussion.
Submitted By: Administration
Finance Officer Comment: No unbudgeted fiscal impact.
Date: November 23, 2009
Signature:
Date: November 23, 2009
Kim Kenny
Town Attorney Comment:
A prayer given to a public body at the outset of a meeting is commonly referred to as "legislative prayer" and is not
automatically unconstitutional. Such a practice must follow a very narrow path in order not to violate the
Establishment Clause of the U. S. Constitution. Some courts have permitted the practice of having a legislative
prayer in the following circumstances: the prayer must be addressed to the council, and not to the audience or
other attendees; it must not be giving for the purpose of promoting any particular religion; and the opportunity to
give the prayer must be given to members of all religious faiths and sects, so that the council does not appear to
be favoring one religion over any other. Even when these circumstances are followed, there is no guarantee that
the practice won’t be challenged by a civil rights suit, and there is never a guarantee that the practice will be found
to be permissible.
It is my opinion that it would be a violation of the Establishment clause for the council to invite anyone (including
but not limited to ministers) to lead the council in any specific or prescribed prayer, including but not limited to the
Lord’s prayer. However, it is impermissible to provide any limitation or instruction on what to say in a prayer. At the
same time, the only type of prayer that is permitted is one in which no particular religion is promoted over another.
Although the Lord’s prayer, in substance, is non-denominational and does not promote any particular religion over
another, it clearly has its roots in the Judeo-Christian tradition and is identified with such.
The United States Court of Appeals for the Fourth Circuit, which has jurisdiction over the Federal Courts of North
Carolina, has recently found a legislative prayer practice to be unconstitutional in the case of Wynne v. Town of
Great Falls. In the Wynne case, the court held that the Establishment clause prohibited prayers that specifically
invoked Jesus Christ, because his divinity is only accepted by those of the Christian faith.
Thus, the Town could face a legal challenge to the practice of opening meetings with a prayer regardless of
whether it provides some guidance on the type of prayer to give, and whether the prayer appears to be nondenominational.
Signature: John Leidy
Date: November 23, 2009
Town Manager Comment:
A quick survey of other municipalities and counties resulted in: 45 do pray - 3 do
not. Dare County opens with a prayer and all municipalities in Dare County observe a moment of silence.
Signature: Cliff Ogburn
Date: November 23, 2009