Judge to Hamilton County: Prayer 'litigation is not over'

photo County Commissioners Mitch McClure, Joe Graham and Warren Mackey, from left, bow their heads as The Lord's Prayer is recited at the beginning of a July meeting of the Hamilton County Commission dealing with prayer policy.

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An order by U.S. District Judge Harry S. "Sandy" Mattice refusing to temporarily halt Hamilton County Commission prayers likely will be appealed to the 6th Circuit U.S. Court of Appeals.

Plaintiffs Tommy Coleman and Brandon Jones said that, after reading Mattice's 37-page order issued Wednesday, they plan to exercise their right to appeal the decision.

Mattice's ruling was limited to a motion for a preliminary injunction, which would have halted the prayers temporarily until the judge could rule on the underlying case, which asks that the prayers be permanently stopped.

Coleman said he and Jones are pleased that Mattice seemed to indicate that, while the prayers could continue for now, that might not last forever.

"He seemed to suggest that they're fair game, and we'll use those to further our case," Coleman said. "That was something that was very good in our favor."

While Coleman and Jones mulled their decision to appeal, an organization helping to represent the county marked the order as an early victory.

"Since this nation's founding, public meetings have been opened with prayer," said Brett Harvey, senior counsel with the Alliance Defending Freedom. "There is no legal reason why Hamilton County's citizens should be denied this freedom under the county's policy, which the court today affirmed as constitutional."

Though the judge ruled on the preliminary injunction, a decision in the overall case won't be made until all the facts and legal arguments are presented at trial.

The order sets Oct. 2 as the scheduling conference in the case, but Mattice said any appeal would cancel that meeting.

Preliminary injunctions require what courts consider an "extraordinary remedy" that requires a "clear showing that the plaintiff is entitled to such relief."

On July 3, after Coleman and Jones had filed their original lawsuit, the commission instituted a new prayer policy that invited ministers from across the county to give the prayer, a move that commissioners said would ensure diversity of religious representation.

Mattice said two conclusions could be drawn from his order.

"First, a legislative body may begin its public meetings with some type of prayer to a deity," he wrote. "Second, the court cannot conclude on the record before it that two prayers referencing Jesus Christ, offered by ministers at a time set aside for prayer by the Commission, constitute an impermissible affiliation of the government with Christianity."

But he did not give a blanket OK to the prayers even with the commission's new policy.

"The court is not prepared to hold that, through its adoption of the July 3 prayer policy, the county has permanently insulated itself from all liability for future violations of the Establishment Clause," Mattice wrote.

Though the policy isn't currently ripe for the court's review, "the litigation is not over, and eventually, a sufficient record will develop," he wrote.

Mattice then challenged the legal positions used by the county to support its argument that the court cannot scrutinize how the policy is actually being applied.

"At this stage of the litigation, at least, the court is not prepared to accept that ... a legislative body may uniformly open meeting after meeting with explicitly Christian prayers without facing some constitutional scrutiny," Mattice wrote.

Mattice described a "continuum" of options that legislatures have for writing prayer policies and concluded that the county crafted a policy "authorizing some denominational prayer while taking care to ensure that its public recitation does not proselytize listeners, advance one religion or disparage another, or otherwise affiliate the government with any specific faith."

"In so choosing, it has assumed -- on its own behalf and on behalf of the citizens and taxpayers of Hamilton County -- the responsibility of ensuring that its policy is implemented in a manner that respects both the rights of its citizens and the commands of the First Amendment," Mattice wrote. "Whether it will actually affect its policy in such a fashion has yet to be seen."

Coleman and Jones filed suit in June after commissioners refused their request to hold a moment of silence instead of prayers. The pair alleged violations of the First Amendment's Establishment Clause and sought no money, except for attorney's fees.

The pair later filed a motion for preliminary injunction.

On June 27, Mattice ordered a hearing on the motion. The following week, commissioners added a late item to their July 3 meeting agenda and passed a new prayer policy.

On July 12, a Hamilton County sheriff's deputy escorted Coleman out of a commission meeting in which he was sitting quietly. Coleman later amended his complaint against the county to include allegations that it violated his Fourth Amendment right against government seizure and a $100,000 claim for damages.

The county agreed to allow the suit to be amended in exchange for commissioners and County Attorney Rheubin Taylor being dropped from the suit in their individual professional capacities.