County Commissioner Dave Sullivan broke with precedent going back at least two decades when, elected chairman by his four fellow-Republican commissioners last fall, he started opening commission meetings with a prayer.
“We’ll go ahead with a moment of silence,” Sullivan now says. “We ask God to bless all the citizens of Flagler County and especially the men and women in the military around the world standing watch to maintain our freedom.” Previous commissioners had introduced the moment of silence with recognition of first responders and the military, but not “God” or a blessing of citizens.
“I added the fact that we’re seeking to bless all the citizens,” Sullivan said. “That’s kind of my feeling at all times, that once you’re an elected representative, we’re representing all the citizens, and we add the people who are first responders, that kind of thing, the military.” In a subtle rebuke to fellow-Commissioner Joe Mullins, who has taunted those who disagree with him to leave the county, Sullivan said: “We’re always thinking about all the citizens of Flagler County, not just the Republican citizens of Flagler County, so I just want to make that point. It may not be significant, but in my mind it’s significant.”
As for the addition of “God,” Sullivan said, it’s “for the same reason that I believe that we have a supreme being that we base our moral values on at some point. I mean it’s the same reason it’s in the Pledge of Allegiance, same reason it’s in Congress, they use the word god, when the chaplain starts the session, that kind of thing.”
The difference, however, is that Sullivan is starting the meeting with that invocation, as opposed to an invited member of the clergy. And the congressional prayers he refers to, for example, also include invocations by Rabbis, as on Jan. 10 and 29 this year or twice in December), by a Hindu on Nov. 14, a Native American the following day, a Cathollic a couple of days after that, and a Muslim Imam last May, among many others. No such diversity is contemplated at the Flagler commission.
“The term ‘God’ in this instance just kind of represents that there is something such as a supreme being, whatever you want to call it, that kind of arranges things,” Sullivan said. “It has nothing to do with anything else but me taking over as chairman and being able to say that at the beginning of a meeting.”
As when the school board chairman last August attempted to start meetings with a prayer from an invited pastor, breaking a five-decade precedent, Sullivan’s decision has caused a stir through emails to commissioners, in the press and social media, and through a few citizens’ comments at commission meetings. On Monday, one such comment, by Mike Cocchiola, a member of the Flagler-Volusia ACLU and the chairman of the local Democratic Party, led to a vigorous defense of the new practice by Sullivan and by Al Hadeed, the county attorney, who said that what “Sullivan did was way on the green side of that rule of law that permits him to make that statement. There is absolutely no doubt in my mind.”
Hadeed gave a brief summary of the state of the law on the matter, though he confused matters and did not provide commissioners a complete picture. In fact, the highest courts that have addressed the type of prayer Sullivan provides have split on the issue, one of them finding it legal, another finding it not. The U.S. Supreme Court has not ruled on the issue. In 2014, it ruled on prayers proffered by people other than elected officials–in other words, people who do not represent or speak for the government. No one is disputing that type of prayer in the present context. Nor is the County Commission providing that type of prayer, though it would be on more solidly constitutional ground if it did so (assuming it had the proper procedures in place).
Cocchiola on Monday spoke specifically to Sullivan’s role, as chairman, offering a prayer. Referring to emails, he said Americans United for the Separation of Church and State “have cautioned you that government officials in a government setting may not offer a prayer during a public session,” that it’s a violation of First and Fourteenth Amendment. “You may have a moment of silence, you may invite preachers, you may invite different people to give invocations. You may not do it [as a commissioner] because it is against the law. So you broke the law tonight when you offered an invocation during a moment of silence.”
Cocchiola referred to the $490,000 settlement earlier this month the Brevard County Commission had to approve with plaintiffs who had sued over commissioners’ discriminatory invitations to only certain preachers of certain Christian denominations to pray at the start of meetings. That commission had explicitly forbidden certain groups from offering prayers, a clear violation of current standards.
“What has happened here doesn’t even come close to approximating what the Brevard County Commission did,” Hadeed said. But nor had Cocchiola claimed it did. Cocchiola had specified that bringing in preachers wasn’t the issue. Rather, he was referring to the Brevard case as the sort of costly consequences a local government may face if and when it does potentially violate any part of church-state separation.
“With respect to what the chair uses,” Hadeed said of Sullivan’s practice, “that is called under the law a legislator prayer. Wide latitude is permitted in that prayer. Now, let me say, despite–and I’m talking about wide latitude from the Supreme Court of Florida and other appellate courts that have passed upon what’s called legislator prayer. That is distinguished from when the clergy comes up to the dias and makes the prayer. Legislative prayer is when it comes from you guys sitting there, whether individually, rotationally or however.”
In fact, the Florida Supreme Court, like the U.S. Supreme Court, have not addressed what Hadeed calls “legislator prayer.” As the attorney-consultant who briefed him on the matter noted, the 6th Circuit Court of Appeals ruled on the issue in 2017, and found such prayer legal. But the prayer is “facially neutral regarding religion” but “generally Christian,” though the court specified that it rated among nine members of an elected panel–the Jackson County Commission in Michigan–who each prayed “based on the dictates of his own conscience.”
The 4th Circuit Court of Appeals also ruled on the same issue that year, and found it to be illegal. “The prayer practice served to identify the government with Christianity and risked conveying to citizens of minority faiths a message of exclusion,” the court ruled, in a case stemming from the county commission in Rowan County, North carolina. “In sum, the elected members of Rowan County’s Board of Commissioners composed and delivered their own sectarian prayers featuring but a single faith. They prevented anyone else from offering invocations. The Board’s prayer practice thus pushes this case well outside the confines of Town of Greece and indeed outside the realm of lawmaker-led prayer itself.” (The Town of Greece case was the U.S. Supreme Court’s 2014 finding that prayers by clergy members at government meetings is permissible.)
“The identity of the prayer-giver is relevant,” the judge writing for the 4th Circuit majority wrote. “From the perspective of the reasonable observer, this distinction matters. Such an observer is aware that phrases like ‘let us pray’ may be ‘for many clergy…almost reflexive.’ But when these words are uttered by elected representatives acting in their official capacity, they become a request on behalf of the state.”
Rowan County commissioner prayers were almost identical to those conducted by the Bunnell City Commission, where commissioners themselves each in turn provides an exclusively Christian invocation. Sullivan’s prayer is significantly more neutral, invoking only “God” in the same way that “God” is invoked in the opening Pledge of Allegiance.
But Hadeed in his analysis to the commission Monday conflated what the courts have ruled permissible–how members of the clergy unaffiliated with government may offer a prayer–with what they have not yet ruled on with the finality Hadeed projected (prayers offered by an elected official from the dais).
“What was articulated by Chair Sullivan does not come close to any line that is a line demarcated by the court–courts–as a danger or as a violation,” Hadeed said. “Specifically, there was no proselytizing of any faith. There was no advancing of any faith. There was no demeaning of any faith. It was a non-denominational statement, and actually the United States Supreme Court allows denominational expressions, and those are deemed valid. So what Mr. Sullivan did was way on the green side of that rule of law that permits him to make that statement. There is absolutely no doubt in my mind.”
Hadeed is right only in so far as if Sullivan had been a preacher invited by the commission, and even then, within the parameters set out by the cases cited. The “green side of that rule of law” is still undecided–either by the 11th Circuit Court of Appeals, which has jurisdiction over Flagler County, or by the Florida Supreme Court (or, for that matter, by any local or district courts.) Hadeed in essence was extrapolating–or assuming–that Sullivan’s prayer would be on the “green side.” It may well be, given the pronounced recent tilt of the federal judiciary in defense of such prayers. But the attorney’s absolutism was overstated, as a matter of law. And it did not take in consideration how, for example, a more zealous, more offensively exclusive commissioner might in future barge through the door Sullivan has merely cracked open.
“So there will be repercussions, because we will not let this go,” Cocchiola told commissioners Monday, hinting at coming legal action. “It is against the law. So I know personally I’m going to go out and see what organizations I can gather and then what legal avenues that we have to deal with this.” He added: “I’ve got to think, and other people have to think, you’re just simply going to ignore the law and do exactly what you please. That will not stand.”