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Forsyth County’s pre-meeting prayers unconstitutionally divisive  

Too many “Jesus” references violate Establishment Clause, 4th Circuit rules

No mystery whose side they’re on: In Richmond, Va., prayers were recently offered outside the federal courthouse. Photo by Alan Cooper/ Virginia Lawyers Media

A divided three-judge panel of the U.S. 4th Circuit Court of Appeals has ruled that prayers at Forsyth County Board of Commissioners meetings that mention Jesus and other tenets of Christianity violate the Establishment Clause of the U.S. Constitution.

“Sectarian prayer is unconstitutional,” said Katherine Lewis Parker of the American Civil Liberties Union of N.C., who represented plaintiffs Janet Joyner and Constance Lynn Blackmon in their suit against the county.

“This serves as a reminder of what the law is. Local and state governments that are violating the law will have to come into compliance,” Parker said.

An opinion authored by Judge J. Harvie Wilkinson III in Joyner v. Forsyth County, N.C. characterized Forsyth County Board of Commissioners pre-meeting prayers as “the gateway to citizen participation in the affairs of local government.” (See Opinion Digest, page 18.)

But that, Judge Wilkinson wrote, “runs afoul of the promise of public neutrality among faiths that resides at the heart of the First Amendment’s religion clauses.”

The clause is found in Constitution’s First Amendment, which provides that “Congress shall make no law respecting an establishment of religion.”

Joyner and Blackmon “don’t want to feel coerced to stand for a prayer that foists a religious viewpoint upon them,” said Ayesha Khan, an attorney for Americans United for Separation of Church and State, which served as co-counsel for Joyner and Blackmon.

“Joyner and Blackmon never had a problem with prayer,” Khan said. “They just wanted the prayer to be inclusive and ecumenical, and the majority agreed with them.”

An acceptable pre-meeting invocation, Judge Wilkinson wrote, “must consist of the type of nonsectarian prayers that solemnize the legislative task and seek to unite rather than divide.”

But Fayetteville attorney Bryce Neier, who represented Forsyth County, said he was concerned “that the court is saying that just because someone mentioned the name Jesus, the prayer was unconstitutional.”

Neier said he is also concerned “that federal courts now appear to be getting into determining scripts for invocation policies.”

Judge Paul V. Niemeyer, dissenting from a two-judge majority that included Judge Barbara Milano Keenan, wrote that courts will “now legislate, based on the imprecise notion of non-sectarianism, bowing to political correctness or universal inoffensiveness and censuring only what offended Joyner and Blackmon on December 17, 2007, without regard to the dangers of governmental censorship of religious expression.”

Felt compelled to stand and bow

Joyner and Blackmon brought suit against the county in federal court in 2007, alleging that “the overall atmosphere” at a Dec. 17, 2007 board meeting they attended “made them feel distinctly unwelcome and ‘coerced by [their] government into endorsing a Christian prayer,’” according to the opinion.

Blackmon said “she felt compelled to stand and bow her head” when board chairwoman Gloria D. Whisenhunt said: “Let us stand for the invocation and remain standing for the Pledge [of Allegiance].”

According to her amended complaint, while “Blackmon was struggling with whether she should bow her head in order to conform, she recall[ed] noticing that another member of the audience turned around and looked at [Joyner and Blackmon] during the invocation.”

Joyner said she believed that if she failed to comply with Whisenhunt’s instructions, it would “negatively prejudice consideration of [her] intended petition as a citizen appearing for public comment.”

Winston-Salem minister Robert Hutchens, who delivered the invocation on that night, told Lawyers Weekly there was no way he could recite a prayer that didn’t mention Jesus.

“I had no idea what I was going to pray that night until I got up,” Hutchens said. “I didn’t plan it out.”

Hutchens said it was right before Christmas, “so the thought that came into my heart was to thank God for sending his son. If you want to have your prayer heard, it is taught in the New Testament that you are to pray to Jesus.”

Praying a biblical prayer, Hutchens said, doesn’t establish religion. “I don’t want to force my beliefs on anyone. I want people to benefit from my prayer, not be turned away by it.”

Blackmon is a member of the Unitarian Universalist Church, according to her 2009 deposition. She testified that “no one prays for the group. There are moments of private… mediation… moments of reflection… everyone is considered to be on their own personal spiritual journey…”

Blackmon said her own preference with respect to legislative prayers “would be a moment of silence so that each can go to their own conscience.”

In their lawsuit, Joyner and Blackmon sought a judgment declaring that the board’s “allowance and sponsorship of sectarian prayers” violated the Establishment Clause.

They also requested that the district court issue an injunction preventing future sectarian prayers at meetings.

The district court ruled in their favor, declaring that the board’s invocation policy a violation of the Establishment Clause, and issuing an injunction against the board barring it from continuing the policy as implemented.

“Legislative prayer in particular”

Judge Wilkinson viewed Joyner not as a case “about the Establishment Clause in general, but about legislative prayer in particular.” He described that distinction as “critical.”

Noting a history of pre-meeting prayer older than the country’s founding, Judge Wilkinson wrote of “a clear line of precedent not only upholding the practice of legislative prayer [but also] acknowledging the ways in which it can bring together citizens of all backgrounds and encourage them to participate in the workings of their government.”

But at the same time, he wrote, “prayer in governmental settings carries risks,” and both the Supreme Court and the 4th Circuit have placed clear boundaries on invocations.

Quoting Allegheny v. ACLU, 492 U.S. 573 (1989), Judge Wilkinson wrote that the Establishment Clause  “certainly means at the very least that government may not demonstrate a preference for one particular sect or creed.”

He cited other cases dealing with legislative prayer that have sought to minimize the risk of doing “violence to the pluralistic and inclusive values that are a defining feature of American public life.”

Applying the limiting principles set forth in applicable precedent, Judge Wilkinson wrote, the Dec. 17, 2007 prayer “clearly crossed the constitutional line.”

Quoting Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004), Judge Wilkinson wrote that by discussing the specific tenets of the Christian religion – the “Cross of Calvary,” the “Virgin Birth” and the “Gospel of the Lord Jesus Christ” – the invocation contained “explicit references to a deity in whose divinity only those of one faith believe.”

And that was not an anomaly in Forsyth County. Citing the record from district court, Judge Wilkinson noted that “prayers delivered at the outset of Board meetings [over the course of 18 months] referred to Jesus, Jesus Christ, Christ, or Savior with overwhelming frequency.”

Brett Harvey, an attorney with the Alliance Defense Fund, who also represented the county, said the court’s opinion appears to say that “occasional references [to Jesus] would be okay, but it becomes a problem if the references are too frequent. But how many is too frequent? The court has given us no guidance on that.”

Harvey said the court also provided no guidance for determining what kinds of prayers would be considered sectarian. “The opinion doesn’t help the county to know what to do. Many people in the Carolinas believe their faith requires them to reference a particular deity when they pray,” he said. “The board isn’t in control of that.”

Judge Wilkinson agreed that the board “showed no favoritism or preference… between religious faiths,” and that its policy respecting prayer, on its face, was neutral. But, he wrote, “citizens attending Board meetings hear the prayers, not the policy.”

And the court, he wrote, “cannot turn a blind eye to the practical effects of the invocations at issue here.”

Khan said prayers are permissible “as long as they reference God rather than a specific God. And requesting God’s blessing on the council is permissible,” she said.

The ACLU’s Parker said the county needs to do more than issue a neutral written policy.

“One of the problems in Joyner was that, while the county’s written policy was neutral, the county was not in any way proactive in discouraging sectarian prayer,” Parker said. “In order to make sure a policy is constitutional, the county needs to be discouraging sectarian prayer.”

Hutchens, the minister, said he wouldn’t accommodate a request that a prayer be nonsectarian…

“If they said ‘You can’t advance a doctrine,’ I don’t have problem with that,” he said. “But the Bible teaches me to pray in the name of Jesus. If I violate the scripture, I’m disobeying God. God won’t hear my prayer.”

Hutchens said he would accept another invitation to pray before a board meeting, “as long as a restriction wasn’t put on me not to pray to Jesus. That would be a violation of my freedom to express my religion.”

He emphasized that “Baptists are absolutely opposed to the state compelling people to do anything.”

“If someone wants to stare at the ceiling and twiddle their thumbs while I pray, that’s fine. No one is forcing anyone to do anything,” he said.

Opinion Brief

Case name: Joyner v. Forsyth County, N.C

Court: U.S. 4th Circuit Court of Appeal

Judges: Judge Harvie J. Wilkinson III; Judge Barbara Milano Keenan, concurring; Judge Paul V. Niemeyer, dissenting

Date: July 29, 2011

Plaintiff-Respondents’ attorneys: Katherine Lewis Parker of the ACLU, N.C. (Raleigh); Ayesha Khan of Americans United for the Separation of Church and State (Washington, D.C.)

Defendant-Appellants’ attorneys: Bryce D. Neier (Fayetteville); Brett Harvey of the Alliance Defense Fund (Scottsdale, Ariz.)

Issue: Did an invocation prior to a municipal board meeting violate the Establishment Clause of the First Amendment to the U.S. Constitution?

Holdings: Yes, when a religious leader’s invocation at a municipal board meeting referred to Jesus Christ and other tenets of the Christian faith, the prayer typified the board’s allowance of sectarian opening prayers at its meetings. The 4th Circuit affirms a district court decision that the board’s legislative prayer policy violates the Establishment Clause.


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