Sandra Day O'Connor justifies prayer limits

A former member of the U.S. Supreme Court serving on an appeals court panel has justified a city's decision to ban prayers at council meetings that are "in Jesus name," calling it a "reasonable" restriction on a councilman's speech rights.

The comments came this week as the 4th U.S. Circuit Court of Appeals heard a case handled by the Rutherford Institute on behalf of Rev. Hashmel Turner.

Rev. Hashmel Turner

Turner, a resident of Fredericksburg, Va., and a member of its town council, was part of a rotation of council members who took turns bringing a prayer at the council meetings, and he ended his prayers "in Jesus name."

That offended a listener, who promptly brought several heavyweight activist groups into the picture with the threat of a lawsuit if the elected Christian council member wasn't censored. So the city adopted a policy requiring "nondenominational" prayers, effectively eliminating any reference to "Jesus."

John Whitehead, the founder and chief of the Rutherford Institute, told WND it's an issue of freedom of speech and freedom of religion, burdened with the politically correct atmosphere in the U.S. that appears to endorse or at least allow any sort of religious acknowledgement, except for Christians.

He said the Fredericksburg case is one of the first to be battled through the courts and is being watched closely by city councils and state legislatures across the country.

Attorneys for Turner argue his prayer should be subject to free-speech protections, while the city alleged his speaking as an elected official turns his words into official "government speech."

The law firm reported former Supreme Court Justice Sandra Day O'Connor described the case as black and white in favor of the city.

"It is government speech, and the rule seems perfectly reasonable," she opined.

The council adopted the policy banning "in Jesus name" in 2005 after Turner already had delivered about 100 prayers, many including those words, over four years. The American Civil Liberties Union of Virginia had threatened a lawsuit if the practice continued.

But attorney Johan Conrod said the prayers are not government speech.

"There is a zone in which an individual has free-speech rights that need to be respected," he said.

Contents of council prayers, he noted, are not specified.

"Government speech is when the government dictates pretty much every word," he said. And others continue, even now, using words such as "almighty God," "heavenly Father," and other references.

"What's the difference?" he asked.

Whitehead, president of the Charlottesville-based Rutherford Institute, said if necessary the case will be forwarded to the U.S. Supreme Court.

"Because he wants to pray to a particular God, he's not being treated equally," he said.

WND has reported several times on various religious leaders, including one high-profile Hindu from Arizona, who have been asked to say prayers at various state legislatures and in the U.S. Senate. Meanwhile, leaders in the Senate specifically rejected permission for a Christian leader, former Navy Chaplain Gordon Klingenschmitt, to do the same.

The city also adopted a penalty of "disorderly conduct" for anyone violating the ban on praying "in Jesus name."

A lower court dismissed the First Amendment complaint, despite arguments that the restriction "violates Turner's constitutional rights to free speech, to freely exercise his religious beliefs and to equal protection of the law."

"The essential question in this case is whether the government can provide an opportunity to pray to a select group of individuals, all the while dictating the content of the prayers and excluding anyone who refuses to go along with their dictates," Whitehead said.

"The answer, as the Supreme Court has ruled in the past, is in the negative – the government simply cannot prescribe or proscribe the content of any 'official' prayer without violating the Establishment Clause, and it cannot discriminate against any person based on his or her religious viewpoint without violating that person's rights to free speech and free religious expression," he said.

Turner joined the council in 2002, but since the 1950s the council called on members on a rotating basis to open in prayer. He prayed both for himself individually that he might have wisdom and guidance in carrying out his duties and likewise for the council, officials said, ending "in Jesus name."

The result was a threat of a lawsuit from the ACLU, which later was joined by other similarly situated advocacy organizations.

The council buckled, adopting a policy of "nondenominational" prayers only. The district court opined that the councilman's prayers were "government speech," an argument Whitehead challenged.

Whitehead, in an opinion column on the case, which already has been in the courts for two years, said the people of Fredericksburg "should be grateful for a representative who knows how to stand his ground and fight for the things that matter."

"There are some things in life that cannot be compromised," he continued. "For Hashmel Turner, his faith, his integrity and his civil liberties are three things worth fighting for."

"Other members of the city council are able to pray in the manner they choose and describe God in their own words. Apart from three small words, the other council members' prayers are not much different from Turner's," Whitehead said.

WND also has reported a number of times on the battles fought by Klingenschmitt, who was ejected from the service because he chose to pray "in Jesus name."

But not all cases are being lost. Klingenschmitt wrote for WND about the city council in Tulsa, Okla., voting 7-2 to restore religious liberty by lifting a ban that had prohibited praying "in Jesus name" before council meetings.

He also wrote about victories in Indiana, where the 7th Circuit Court of Appeals overturned a decision that banned praying to Jesus on the floor of the state House, and in Ohio, where state officials reversed their temporary ban on prayers to Jesus.

In Klingenschmitt's own case, he was convicted by the Navy of failing to follow a lawful order because his superior didn't want him praying "in Jesus name." But when Congress got word of his $3,000 fine for his prayer, members ordered the Navy to remove the limitation and allow chaplains to pray as their "conscience dictates."

WND also has reported on several cases in which Christians have been cited, or threatened with citations, for disorderly conduct for their expressions of their faith, including praying in a city park, and practicing praise and worship music in a church building.

Related special offers:

"The Story of In God We Trust"

Judge Roy Moore's "So Help Me God"

CRIMINALIZING CHRISTIANITY: How America's founding religion is becoming illegal

"Christianity and the American Commonwealth "

Navy chaplain being booted from service

Civil rights issue delays chaplain's dismissal

Navy dismisses chaplain who prayed 'in Jesus' name'

Navy setting up 'civic religion,' lawsuit charges

Court-martialed chaplain declares victory

Prayer in Jesus' name results in $3,000 fine

Chaplain who prayed 'in Jesus' name' convicted