John Whitehead, founder and President of The Rutherford Institute, argues that the recent Fourth Circuit ruling on the constitutionality of prayers conducted at the opening of a legislative session contradicts its own precedent, in addition to that of the Supreme Court…

Last week, the US Court of Appeals for the Fourth Circuit rendered unconstitutional the invocation policy of the Forsyth County Board of Commissioners in Joyner v. Forsyth County. This 2-1 decision not only conflicts with previous US Supreme Court and Fourth Circuit cases, but also poses a danger to the long established tradition of legislative prayer—a tradition that, as the Joyner majority notes, “can bring together citizens of all backgrounds and encourage them to participate in the workings of their government.”

The issue in Joyner arose in response to a newly adopted policy in Forsyth County, North Carolina, that allowed religious leaders of all faiths the opportunity to offer an invocation before Board of Commissioners meetings. Importantly, the board’s policy expressly stated that the opening prayer was not part of the public business and not intended to affiliate the board with any faith or religious denomination. The professed goal of the policy was to “acknowledge and express the Board’s respect for the diversity of religious denominations and faiths represented and practiced among the citizens of Forsyth County.” The board did not conduct any prior inquiry or review of the speakers’ prayers. However, the board requested “the prayer opportunity not be exploited as an effort to convert others to [a] particular faith … nor to disparage any faith or belief.” Speakers were scheduled on a first-come, first-serve basis but could not speak more than twice a year. As the Fourth Circuit conceded, the policy was entirely neutral and not coercive.

Still, despite the best efforts of the board, the Fourth Circuit found the policy unconstitutional because the prayers offered were predominantly Christian. Specifically, many invocation speakers referred to “Jesus Christ,” which the Fourth Circuit considered impermissible because citizens with different beliefs might feel marginalized or ostracized by particularly sectarian prayer.

Legislative prayer was first upheld in Marsh v. Chambers, where the US Supreme Court concluded that the Nebraska legislature’s policy of employing a chaplain to begin each legislative session with a prayer was constitutionally permissible. In Marsh, the legislature had employed the same Presbyterian minister for sixteen years, paying him out of public funds for his services. Confirming the constitutionality of legislative prayer, the Supreme Court acknowledged that the opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.

Accordingly, the Supreme Court decided that when there is no indication that the opportunity has been exploited to proselytize or advance any one faith or belief, “the content of the prayer is not of concern to judges.” In light of 200 years of unbroken practice in the US Congress, the court stated: “There can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making laws is not … an ‘establishment’ of religion or a step towards establishment.”

The Fourth Circuit has applied the principles set forth in Marsh on multiple occasions. In Wynne v. Town of Great Falls, the court determined that a town council violated the Establishment Clause by consistently “invoking the name of ‘Jesus Christ.’ to the exclusion of deities associated with any other particular religious faith.” Unlike in Marsh, however, town council members actually offered this sort of invocation—not paid chaplains. As the court of appeals recognized: “Marsh does not permit legislators … to engage, as part of public business and for the citizenry as a whole, in prayers that contain explicit references to a deity in whose divinity only those of one faith believe.”

One year later, in Simpson v. Chesterfield, the court upheld a county board of supervisors’ policy that invited religious leaders from Chesterfield County, Virginia to offer an invocation before the evening board session. The board invited local religious leaders of all faiths to offer an invocation, and only stipulated that clerics not invoke the name of Jesus Christ in their prayers, as the board wanted to maintain a non-sectarian theme. Nevertheless, many clerics invoked sectarian terms, including “Lord God,” “our creator,” and “Jesus,” among others—terms that relate to the Christian religion in particular. The Fourth Circuit upheld this policy, noting that the board had “no ability to dictate selection, the clergy itself control[led] it by choosing to respond or not.”

In light of these cases, the Fourth Circuit’s decision in Joyner appears out of place. The Forsyth County policy accords with Marsh, as there is no indication that the board used the invocation as an opportunity to proselytize or advance any particular belief over another. Rather, similar to the policy in Simpson, the board removed itself from the selection process by opening the invocation to all religious leaders in Forsyth County. Unlike Simpson, however, the Fourth Circuit invalidated this neutral policy merely because many of the self-selected speakers mentioned Jesus Christ. The court compared these subtle remarks to the egregious endorsement of religion in Wynne. Ignoring the fact that religious leaders from all faiths were invited to speak, the court declared the policy impermissible because “citizens should come to public meetings confident in the assurance that government plays no favorites in matters of faith but welcomes the participation of all.”

Acknowledging the neutrality of the policy, the court seemingly invalidated it because a majority of the religious leaders used particularly Christian terminology. Nowhere in Marsh does the Supreme Court mandate that legislative prayer must be free from all mention of particular faiths. Marsh only requires that speakers not use the invocation as opportunity to proselytize or advance one religion over another. Hence, the Fourth Circuit misapplied precedent and decided Joyner incorrectly because the board set forth a neutral policy that invited followers of all faiths the opportunity to offer an invocation so long as they refrained from proselytizing or advancing one particular religious view over another.

Furthermore, the Joyner decision has the dangerous effect of directing legislatures to review and presumably censor invocations offered by religious leaders. The court in Marsh expressly prohibited this type of parsing activity by the government. Nevertheless, if Joyner stands, government officials will be forced to review and censor invocation remarks to avoid violations of the First Amendment. This sort of government involvement with religion is the very activity the Establishment Clause is designed to prevent.

Judge Paul Niemeyer, dissenting in Joyner, best explains the potential dangers of the decision:

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, according to each leader’s religion. The majority’s decree commands that every legislative prayer reference only “God” or some “nonsectarian ideal,” supposedly because other appellations might offend. Thus, in a stated sensitivity to references that might identify the religion practiced by the religious leader, 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; hardly accommodates the Supreme Court’s jurisprudence in Marsh v. Chambers. … Most frightfully, it will require secular legislative and judicial bodies to evaluate and parse particular religious prayers under an array of criteria identified by the majority. …

Prayer includes the articulation of words addressed to the Divine Being in accordance with the beliefs of the prayer-giver’s religion. Because how one should address the Divine Being and what one should say cannot be determined by a civil court of law, efforts to do so would inevitably place courts in the untenable role of regulating the content of religious expression. And to interfere with a prayer-giver’s form of address during an invocation is no less intrusive. In the Jewish and Christian traditions, Moses asked God, when receiving the law, how he was to refer to God in relating the law to his people. God told Moses that he must say to the Israelites, “I am who I am” and therefore he must say, “I am has sent me to you.” God also told Moses to say to the Israelites, “YHWH [the sacred and unspeakable name of the Lord], the God of your ancestors, the God of Abraham, the God of Isaac, and the God of Jacob, has sent me to you.” God concluded, “This is my name forever, and this is my title for all generations.” Exodus 3:13-15. Christians call on the Divine Being with the names God the Father, God the Son (Jesus), and God the Holy Spirit. Muslims have 99 names for God, but Allah is the supreme appellation. Yet the majority opinion now directs all religious leaders to forsake these names to accommodate some “civil,” court-shaped religion. …

[T]he majority’s logic in prohibiting only an invocation of Jesus during prayers in Forsyth County, but otherwise allowing other prayer content, escapes me. Prayer includes the invocation of the Divine Being according to the understanding of the religion, not the court. Would the majority thus preclude a Christian prayer invoking the Holy Spirit or Pax Christi or the King of kings? Would the majority deny a prayer invoking the God of Abraham, Isaac, and Jacob? Whatever name is spoken, it is spoken by the religious leader in accord with the leader’s religion to call on the Divine Being. Yet we now legislate, based on the imprecise notion of nonsectarianism, 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.

I respectfully submit that we must maintain a sacred respect of each religion, and when a group of citizens comes together, as does the Forsyth County Board of Commissioners, and manifests that sacred respect—allowing the prayers of each to be spoken in the religion’s own voice—we must be glad to let it be. The ruling today intermeddles most subjectively without a religiously sensitive or constitutionally compelled standard. This surely cannot be a law for mutual accommodation, and it surely is not required by the Establishment Clause.

John Whitehead is a constitutional attorney and author. He founded The Rutherford Institute in 1982 as a nonprofit civil liberties and human rights organization. He recently authored The Freedom Wars, which examines the constitutional questions arising from the increasing use of electronic surveillance by government authorities.

Suggested citation: John Whitehead, Fourth Circuit Legislative Prayer Ruling Contradicts Precedent, JURIST – Hotline, Aug. 3, 2011, http://jurist.org/hotline/2011/08/john-whitehead-legislative-prayer.php.