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Forsyth County hopes that 4th Circuit is answer to prayers

Lawyer: If county loses, it will press the case to the U.S. Supreme Court

Before oral arguments in Forsyth County’s prayer-before-meetings lawsuit on May 12, Casey Mattox, third from right, an attorney with the Alliance Defense Fund, leads a group in prayer outside the U.S. Courthouse in Richmond. The Alliance Defense Fund represents Forsyth County, N.C., in the suit. Photo by Alan Cooper, Virginia Lawyers Weekly

Forsyth County’s hope that its prayers-at-government-meetings practice will be ruled constitutional hinges on the county’s open invitation to any religion to supply those prayers.

The legal battle, in which the county lost its first two skirmishes, renewed May 12 with oral arguments in front of the U.S. 4th Circuit Court in Richmond, Va.

The Forsyth County Board of Commissioners invites local clergy to open meetings with a sectarian prayer.

But in 2007, Forsyth County residents Janet Joyner and Constance Blackmon  filed a federal lawsuit claiming the Board of Commissioners’ policy of inviting local clergy members to give invocations at the start of the board’s twice-monthly meetings violated the First Amendment’s separation of church and state doctrine.

Although the invitation went to clergy of various faiths, in practice, the plaintiffs argue, the county’s policy almost always resulted in sectarian references to Jesus Christ and Christianity.

Attorneys representing the commissioners said they think the case can break new legal ground, and added they are prepared to take it all the way to the U.S. Supreme Court if necessary.

Michael Johnson, of counsel with Alliance Defense Fund and designated to argue the county’s case, said, “It really is a matter of first impression in the 4th Circuit.”

Attorneys representing the residents who brought the suit, on the other hand, said that existing precedent is already firmly on their side – and that the county’s prayer policy clearly flouts the Establishment Clause.

“The 4th Circuit [has] already decided that counties cannot use sectarian prayers when only one religious group is represented,” said Ayesha N. Khan, legal director at Americans United for Separation of Church and State, which represents the plaintiffs along with the ACLU of North Carolina.

Her assertion is that as a matter of practice, in the meetings in Forsyth County, only Christian prayers are said.

The residents who brought the lawsuit, both Unitarian Universalists, said they felt pressured to stand and take part in the Christian prayers when they attended board meetings. Unitarian Universalism is a theology that does not embrace a particular deity.

“I know both of them have great respect for religion. They are religious people,” said Katherine Lewis Parker, legal director for the North Carolina ACLU, designated to argue on the residents’ behalf before the 4th Circuit panel. “But they believe the government ought to stay neutral.”

The county contends that although the 4th Circuit and U.S. Supreme Court have held that government meetings can include invocations that are expressly nonsectarian, meaning they make no reference to any specific religious denomination, the issue of whether the Establishment Clause allows county officials to invite clergy of all faiths to deliver a sectarian message before meetings remains unresolved.

As long as the county’s policy does not command what type of prayer is delivered, leaving the content of the message entirely up to speaker, there is no government-sanctioned religious message, Johnson said.

“Our rule of thumb is simple: So long as the prayer opportunity has not been exploited to proselytize one religion or disparage another, it is not for a judge to parse the content of particular prayers [to] determine whether or not it is acceptable,” Johnson said before the argument.

So far the county’s argument has swayed neither Magistrate Judge Trevor Sharp of the U.S. District Court for the Middle District of North Carolina nor U.S. District Court Judge James Beaty, both of whom held that the county’s invocation policy violated the First Amendment. The county swiftly appealed to the 4th Circuit.

The countys commissioners decided, albeit by a 4-3 vote, to pursue the appeal based on the principle that such invocation policies have been in place since the founding of the country.

“Prayer is deeply embedded in the history of our country,” Johnson said, “and cases in the Supreme Court have acknowledged that it is important.”

Parker said she was not surprised that the county appealed. Though Establishment Clause cases have been brought by the ACLU across the country, locally the issue of religion is a particularly hot one.

“I think that certainly we encounter a lot of religious freedom issues in North Carolina,” Parker said. “People on all sides take their religion very seriously. But I think it is important to keep in mind, when you are talking about Establishment Clause cases, that the Constitution is meant to protect people’s right to practice their own religion in their private lives.”

Even if the 4th Circuit rules against it, the county will continue to appeal, Johnson said. He said other circuits have precedent supporting the county’s position, so a ruling by the 4th Circuit against the county would create a split that would make the case ripe for review by the nation’s highest court.

“If that’s the case, then yes,” the county would petition the Supreme Court for certiorari Johnson said.

The county has solicited private donations to pay for the costs of the appeal.

Prior to oral arguments before the 4th Circuit, Alliance Defense Fund attorney Casey Mattox led a prayer on the sidewalk outside the courthouse. ACLU attorney Parker said those participating in that prayer had every right to do so under the Constitution, which protects the private exercise of religion so long as it is not by direction of the government.

“It would be a funny turn of events,” Parker said, “but if anyone told them that they could not give a prayer as private citizens, the ACLU would be glad to take their case and defend them.”

Questions or comments can be directed to the writer at: [email protected]

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