A board of county commissioners in North Carolina is asking the Supreme Court for help: Its members don’t believe they should have to forbid volunteers from mentioning the name of Jesus in prayers offered before their meetings.
But the American Civil Liberties Union and Americans United for Separation of Church and State are standing by their victory in a U.S. circuit court decision that states even “a solitary reference to Jesus Christ” in invocations before the Forsyth County Board of Commissioners’ meetings could do “violence to the pluralistic and inclusive values that are a defining feature of American public life.”
Furthermore, wrote Judge James Harvie Wilkinson III in the Fourth Circuit Court of Appeals majority opinion, legislative invocations offered in Jesus’ name are inherently “sectarian” and thus should be censored lest they make some attendees feel “uncomfortable, unwelcome and unwilling to participate in … public affairs.”
But the board disagrees, and with the help of the Alliance Defense Fund is asking the Supreme Court to trump Wilkinson’s ruling.
“America’s founders opened public meetings with prayer; this county simply wants to allow its citizens to do the same,” said ADF Senior Counsel David Cortman in a statement. “We trust the U.S. Supreme Court will want to review this case because of the long history in America of offering prayers before public meetings. Public officials shouldn’t be coerced into censoring the prayers of those invited to offer them just because secularist groups don’t like people praying according to their own conscience.”
For years, the board has extended an open invitation to religious leaders from the community to volunteer a prayer before its twice-monthly meetings, asking only that the invocations “not be exploited as an effort to convert others … nor to disparage any faith or belief.”
But a pair of local citizens, Janet Joyner and Constance Lynn Blackmon, attended the meetings regularly and were bothered by the frequent mentions of Jesus in the prayers. After the pair sat through yet another Christian prayer, this one including references to “the Cross of Calvary” and the “Virgin Birth,” they sued the board of commissioners with help from the ACLU and Americans United lawyers.
After a pair of appeals, Judge Wilkinson handed down a majority opinion Americans United called “a major win for church-state separation.”
“While legislative prayer has the capacity to solemnize the weighty task of governance … it also has the potential to generate sectarian strife,” Wilkinson reasoned. “Such conflict rends communities and does violence to the pluralistic and inclusive values that are a defining feature of American public life.”
“It is not enough to contend, as the dissent does, that the policy was ‘neutral and proactively inclusive,’” the ruling continues. “Take-all-comers policies that do not discourage sectarian prayer will inevitably favor the majoritarian faith in the community at the expense of religious minorities living therein. This effect creates real burdens on citizens – particularly those who attend meetings only sporadically – for they will have to listen to someone professing religious beliefs that they do not themselves hold.”
The Forsyth Board’s invocations, the court determined, “made at least two citizens feel uncomfortable, unwelcome and unwilling to participate in the public affairs of Forsyth County. To be sure, citizens in a robust democracy should expect to hear all manner of things that they do not like. But the First Amendment teaches that
religious faith stands on a different footing from other forms of speech and observance.”
Judge Wilkinson concluded, “In order to survive constitutional scrutiny, invocations must consist of the type of nonsectarian prayers that solemnize the legislative task and seek to unite rather than divide.”
But does a volunteer’s prayer that merely mentions Jesus necessarily “divide”?
The court referenced one of its prior decisions in which it ruled a town council’s prayers “clearly ‘advance[d]‘ one faith, Christianity, in preference to others … because they ended with a solitary reference to Jesus Christ.”
The ruling further projected, “As our nation becomes more diverse, so also will
our faiths. To plant sectarian prayers at the heart of local government is a prescription for religious discord. … In their public pursuits, Americans respect the manifold beliefs of fellow citizens by abjuring sectarianism and embracing more inclusive themes.”
Judge Paul Niemeyer, however, dissented from the two majority judges in the three-judge panel that heard the case, arguing that the court is, in application, “regulating” public prayer.
“When offering legislative prayers in which the Divine Being is publicly asked for guidance and a blessing of the legislators, religious leaders will hereafter have to refrain from referencing the Divine Being with the inspired or revealed name,” Niemeyer wrote. “The majority has dared to step in and regulate the language of prayer – the sacred dialogue between humankind and God. Such a decision treats prayer agnostically; reduces it to civil nicety.
“Most frightfully,” he continued, “it will require secular legislative and judicial bodies to evaluate and parse particular religious prayers.”
Alliance Defense Fund Senior Counsel Brett Harvey agrees.
“The decision is troubling on many fronts,” Harvey wrote in a blog post. “It is out of step with many other federal courts that have considered the validity of public invocations, including the United States Supreme Court. It ignores the religious heritage and history of our nation. But more troubling is the impact of the court’s decision on prayer itself. … It requires the government to censor private prayers and engage in comparative theology.”
He concludes, “The Constitution prohibits the government from deciding which religious words are acceptable and which are not, even if the goal is to make people feel more comfortable.”