Fourth Circuit rules against Forsyth County in prayer case
July 29, 2011
On December 17, 2007, Janet Joyner and Constance Lynn Blackmon decided to attend a meeting of the Forsyth County Board of Commissioners. Like all public Board meetings, the gathering began with an invocation delivered by a local religious leader. And like almost every previous invocation, that prayer closed with the phrase, "For we do make this prayer in Your Son Jesus' name, Amen." The December 17 prayer also made a number of references to specific tenets of Christianity, from "the Cross of Calvary" to the "Virgin Birth" to the "Gospel of the Lord Jesus Christ."
Friday (7-29-11) the Fourth Circuit of Appeals upheld a District Court ruling that the prayer and the practice of using such prayers before every meeting was an unconstitutional establishment of religion by a government agency.
The court ruled:
The district court's ruling accords with both Supreme Court precedent and our own. Those cases establish that 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. Sectarian prayers must not serve as the gateway to citizen participation in the affairs of local government. To have them do so runs afoul of the promise of public neutrality among faiths that resides at the heart of the First Amendment's religion clauses….
In sum, invocations at the start of legislative sessions can solemnize those occasions; encourage participants to act on their noblest instincts; and foster the humility that recognition of a higher hand in human affairs can bring. There is a clear line of precedent not only upholding the practice of legislative prayer, but acknowledging the ways in which it can bring together citizens of all backgrounds and encourage them to participate in the workings of their government.
At the same time, both the Supreme Court and this circuit have been careful to place clear boundaries on invocations. That is because prayer in governmental settings carries risks.
The proximity of prayer to official government business can create an environment in which the government prefers — or appears to prefer — particular sects or creeds at the expense of others. Such preferences violate "[t]he clearest command of the Establishment Clause": that "one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U.S. 228, 244 (1982). After all, "[w]hatever else the Establishment Clause may mean . . . it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed." Allegheny, 492 U.S. at 605. More broadly, while legislative prayer has the capacity to solemnize the weighty task of governance and encourage ecumenism among its participants, it also has the potential to generate sectarian strife. Such conflict rends communities and does violence to the pluralistic and inclusive values that are a defining feature of American public life.
The cases thus seek to minimize these risks by requiring legislative prayers to embrace a non-sectarian ideal. That ideal is simply this: that those of different creeds are in the end kindred spirits, united by a respect paid higher providence and by a belief in the importance of religious faith. Yet an ideal so much in evidence in our coinage, in the Pledge of Allegiance, in our own "God save the United States and this Honorable Court"—an ideal long thought to be both meaningful and unifying—now strikes the dissent as unacceptably bland. For the dissent astonishingly disparages this ideal, dismissing non-sectarian invocations as mere "civil nicet[ies]" that treat prayer "agnostically." Post at 28. This view not only diminishes meaningful observances offered every day across this country. It denies to invocations their inclusive aspect.
This decision, whether appealed to the U. S. Supreme Court or not, will no doubt be misconstrued. Some will say the court "outlawed prayer." When you read the decision you see clearly that is not the case. What it did do is to say that people who render prayers cannot express a preference for one particular brand of religious belief. The Fourth Circuit's decision is binding on Beaufort County unless and until it is overturned by the Supreme Court.