UPDATE: Judge releases decision on Commission prayer
CHATTANOOGA (WRCB) - When he delivered the opening prayer before Hamilton County Commission June 28, Christ Family Church Pastor Calvin Nunley became the second religious leader to invoke Jesus under the Commission's revised policy for choosing invocation leaders.
But, U.S. District Court Judge Harry S. (Sandy) Mattice's ruling Wednesday ensures that he won't be the last.
Two Hamilton County residents and UT-Chattanooga students, Brandon Jones and Thomas Coleman, claim the prayer policy is unconstitutional. They're suing the Commission on grounds that that policy violates the First Amendment's Establishment Clause, that bars government endorsement or promotion of a particular faith.
But Judge Mattice has denied a request for a temporary injunction to halt those prayers until he hears the full case.
In a 37-page opinion, he writes that the prayer policy strives to be neutral and does not intend to "proselytize or advance any one particular faith."
Jones and Coleman vow to appeal.
"It doesn't affect the merits of our case," their attorney, Robin Flores, tells Eyewitness News. "I still think our argument was solid."
Flores offered only two prayers, including Pastor Nunley's as proof that the new prayer policy, on its face, violates the Establishment Clause.
But Judge Mattice writes that he cannot conclude that two prayers referencing Jesus Christ "constitute an impermissible affiliation with religion."
"The county does not have carte blanche to do anything and everything it wants," says Brett Harvey, an attorney for the Christian legal group Alliance Defending Freedom (ADF). "But at this point, there no reason to believe that the County is going to act in any way that is unconstitutional."
The ADF wrote Hamilton County's prayer policy based upon a case out of Cobb County, GA, Harvey confirms.
"It has survived appeals, and passes Constitutional muster," he says. "There's certainly nothing unconstitutional about using a neutral system to invite members of the community to deliver an invocation."
In a hearing before Judge Mattice seeking the injunction, Commission staffers confirm that they compiled a list of 'clergy and religious leaders' based on listings in the Hamilton County Yellow Pages, and by whether their organizations qualified as charities; based on Internal Revenue Service guidelines for 501-C3 tax-exempt organizations.
"I don't see how you can be all-inclusive," Flores counters. "We are a County of individuals, not organizations. It puts too much power in one individual who's compiling that list."
Judge Mattice's ruling cites prior federal cases to conclude that "a legislative body may begin its public meetings with some kind of public prayer to a deity" and finds "no evidence that the County seeks to use the prayer opportunity to advance one faith over another."
However, the Judge writes that he "is not prepared to hold that the County has insulated itself from all liability for future violations."
County Commission staffers confirm that invitations were mailed to at least four Jewish groups; two synagogues and two temples. A Baha'i temple and a Muslim group also received invitations.
Counting Thursday's meeting, staffers have scheduled 22 clergy to perform invocations at Commission meetings through February 6, 2013.
Only one publicly identifies as non-Christian; a leader in the Universal Life Church, whose invocation is scheduled for November 29.
Judge Mattice has scheduled a hearing October 2, to set timetables for hearing the Constitutional challenge. That hearing will be cancelled, however, should he grant Flores' request to appeal the injunction's denial to the Sixth Circuit Court of Appeals.
"The County has a heavy self-imposed burden now," Flores says. "(They'd) better be looking elsewhere to get some other groups in there. When you've got one Muslim group and one rabbi in there? No."
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