The judges on the 11th U.S. Circuit Court of Appeals have used a case from Cobb County, Ga., to proclaim that praying “in Jesus’ name” is acceptable at county board meetings when other constitutional provisions are followed.
The ruling this week sets up a conflict with the 4th U.S. Circuit Court of Appeals, which concluded in an opinion written by ex-Supreme Court Justice Sandra Day O’Connor that city officials properly excluded from a rotation of leaders for opening prayers at a municipal meeting a pastor who prayed “in Jesus’ name.”
“Finally an appeals court with some common sense has ruled what I’ve been saying all along. The government cannot parse the content of anybody’s prayer, nor forbid prayers offered ‘in Jesus’ name’ in legislative bodies, or by government chaplains,” said Chaplain Gordon Klingenschmitt.
Klingenschmitt was discharged from the U.S. Navy in a dispute with his commander over praying in uniform “in Jesus’ name,” although he later won a victory in Congress that now allows other chaplains to pray as their conscience dictates.
His personal case seeking reinstatement remains pending.
“This victory for Jesus prayers deals a serious blow to the ACLU’s national campaign to silence all mention of Jesus’ name from utterance in the public square,” he said. “It proves ‘Jesus’ is not an illegal word, and this court decision proves it’s fully constitutional to pray ‘in Jesus name’ at public events, especially if you’re a government-paid chaplain, as long as we all take turns.
“If the anti-Christian lawyers for the ACLU dare to appeal this good ruling to the Supreme Court, this case would stand opposite the bad ruling in Turner v. Fredericksburg [from the 4th Circuit],” said Klingenschmitt.
In the new 11th Circuit ruling, the judges took on the objections brought by some taxpayers in Cobb County that their county commission and planning commission opened meetings with prayers assigned among local religious leaders on a rotating basis.
“When legislative prayers do not ‘have the effect of affiliating the government with any one specific faith or belief … it is not for [the court] to embark on a sensitive evaluation or to parse the content of a particular prayer,” the court ruling said.
“We would not know where to begin to demarcate the boundary between sectarian and nonsectarian expressions and the taxpayers [who brought the case] have been opaque in explaining that standard,” the court said. “Even the individual taxpayers cannot agree on which expressions are ‘sectarian.'”
The opinion said representatives of Christianity, Islam, Unitarian Universalism and Judaism have been represented.
“The prayers have included references to ‘Jesus,’ ‘Allah,’ ‘God of Abraham, Isaac, and Jacob,’ ‘Muhammad,’ and ‘Heavenly Father,'” the court said.
Those who objected, the court said, “argue that the Estabslihment Clause permits only nonsectarian prayers … but we disagree.”
The ruling said precedent makes it clear that “the content of the prayer is not of concern to judges where … there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.”
“Whether invocations of ‘Lord of Lords’ or ‘the God of Abraham, Isaac, and Mohammed’ are ‘sectarian’ is best left to theologians, not courts of law,” the court said.
Rev. Hashmel Turner
Attorneys with The Rutherford Institute have asked the high court to overturn the opinion issued by the 4th U.S. Circuit Court of Appeals, which came in the case of Hashmel Turner, a Christian who was told he alone of all council members in Fredericksburg, Va., would not be allowed to use the name of his God during the routine meeting prayers.
The appeals court had concluded that such prayers actually were “government speech” and, therefore, not protected by the First Amendment. But Rutherford lawyers say the city’s attempt to dictate the content of prayers violates the Establishment Clause of the First Amendment as well as Turner’s free speech and free exercise rights.
That’s trouble, the institute said. In fact, the decision “has already triggered a discriminatory backlash against state-trooper chaplains in Virginia and … threatens to undermine free speech rights around the country.”
The O’Connor ruling, said the appeal, “theoretically could permit a city council to prepare the text of an approved prayer and require any council members who wish to pray to read from the approved script.”
Such government demands, the appeal said, are “unprecedented in the history of this Court’s First Amendment jurisprudence.”
In fact, “It violates this Court’s outright prohibition on the government prescribing or proscribing the content of any prayer. It gives government unbridled authority to discriminate against religious viewpoints under the ‘government speeech’ umbrella without any accountability,” the institute’s appeal said.
Klingenschmitt has set up a Prayer Rally for Persecuted Police Chaplains Saturday, from 10-11 a.m. at the Capitol Square Bell Tower in downtown Richmond in support of the six Virginia State Police chaplains who resigned their chaplain posts rather than agreed to stop praying “in Jesus’ name” as ordered by state officials.
Nearly 100 Virginia pastors already have pledged to mobilize their churches in support of the chaplains.
Pastors wrote the Virginia governor seeking a change in the policy that suddenly was announced by Col. W. Steven Flaherty to chaplains. The dispute became public through the work of Charles W. Carrico Sr., a member of Virginia’s House of Delegates, a former trooper.
State officials said the policy was imposed because they were worried about future lawsuits because of the O’Connor opinion.
Said the appeal, “Unquestionably, the city council’s policy was aimed directly at Councilor Turner and his practice of closing prayer in the name of Jesus Christ. Unquestionably, after the policy was adopted, other city council members were permitted to pray in the name of other deities and to utter prayers reflecting denominational influences. … whereas councilor Turner was excluded from praying.”