Protesters remain seated during an opening prayer at a Hamilton County Commission meeting in 2012. The group addressed commissioners on their belief that a moment of silence should open government meetings instead of prayer.In May the U.S. Supreme Court strengthened the constitutional armor protecting prayer at public meetings, but an attorney in a local public prayer case said that defense may soon be tested.
Attorney Robin Flores, who represents Tommy Coleman and Brandon Jones -- two residents who sued Hamilton County in 2012 over its invocation policy -- said after making new filings in the case last week that the county prayer lawsuit may be "a first test case" for the high court's latest ruling on prayer at government meetings.
In May, the high court ruled on a case from Greece, N.Y., where two women -- one Jewish and one atheist -- sued the town of Greece for holding predominantly Christian prayers before its public meetings. The court ruled 5-4 in support of the town's ability to hold religious prayers before meetings, saying it was longstanding tradition. The opinion further bolstered a 1983 decision on public prayer.
Hamilton County cited that case when it asked U.S. District Court Judge Harry S. Mattice on Sept. 30 to rule in the county's favor without further argument. In the county's request, attorney Stephen Duggins wrote that the Greece case "reaffirmed the constitutionality" of prayers at public meetings and "clarified the standard to evaluate the practice." Duggins said there was no longer a legal dispute.
Commissioners stand and bow their heads as Pastor Chris Peponis delivers the opening prayer at the beginning of a Hamilton County Commission meeting in 2012.On Thursday, Duggins said in a phone interview that the county asked the court for a ruling specifically because the Greece case cleared the issue and there's nothing left to discuss.
But Flores said there is plenty left to dispute. He said the Supreme Court was split over the New York case -- and those justices in agreement weren't all on the same page. Further, he said, the county did not address Coleman's and Jones' assertions that the county's process used to decide who may give an invocation is flawed.
"The town of Greece decision is a plurality decision. The majority said, 'Yeah, it's OK to do it,' but the judges on the decision gave different reasons," Flores said.
Flores asked Mattice in a filing last week to deny the county's September request for summary judgment.
He said the New York case was the "controlling law," but the local case has unique issues.
"What we're arguing is the actions and conduct of the county ... the process and [invocation policy] they are holding as the Holy Grail, is a sham," Flores said.
At the heart of the case against the county, Coleman and Jones say the policy for who may give the invocation excludes those who do not have a congregation or a physical church. They argue it is an effort to prevent or limit those who are not from Judeo-Christian faiths to give the invocation.
Duggins said they "simply disagree." He plans to file a response to Flores' filing today.
Flores said that if Mattice grant's the county summary judgment, the case would likely go back to the U.S. 6th Circuit Court of Appeals in Cincinnati.
"What we are hoping is this will be a first test case to take back to the Supreme Court," Flores said.
But Duggins said in any event, it's unlikely the Supreme Court would hear the case "since they just issued a decision on a similar issue."
In July, the appeals court upheld a previous Mattice decision not to bar prayers at local meetings before the case is concluded.
Prior to the opinion in Greece v. Galloway, federal appellate courts in New York, Virginia, Illinois and Colorado have ruled against allowing prayer at government meetings. But courts in California, Ohio and Georgia have upheld it. Part of the Supreme Court's duty is to provide uniformity of law.
Contact staff writer Louie Brogdon at lbrogdon@timesfreepress.com, @glbrogdoniv on Twitter or at 423-757-6481.