In a remarkable 2-1 split decision, the Fourth Circuit Court of Appeals (which presides over the four states of the Carolina’s and the Virginias) invalidated the policy of Forsyth County, NC that allowed prayers to be offered before meetings of the County Council. The court acknowledged that the county policy was “neutral and proactively inclusive.” However, it was struck down because the court found that the county did not “proactively discourage” private citizens from mentioning Jesus in prayers.
The decision is troubling on many fronts. It is out of step with many other federal courts that have considered the validity of public invocations, including the United States Supreme Court. It ignores the religious heritage and history of our nation. But more troubling is the impact of the court’s decision on prayer itself. The court decision ignores a key purpose of a public invocation. It requires the government to censor private prayers and engage in comparative theology. The majority opinion punishes a county for the demographic make-up of the community and signals to people from many faith traditions that their prayers are not welcome.
In a series of short blogs I will explore some of the troubling aspects of the decision in Joyner v. Forsyth County, NC decided on July 29, 2011.
In Forsyth County the commissioner invited people from every faith background in the community to give an invocation. The county had nothing to do with who prayed because the prayer giver was taken in the order he or she volunteered. The county took no part in regulating the prayers and refused to screen prayers in advance. The content of the prayers was a product of the demographics of the county and entirely controlled by the conscience of the person praying.
Incredibly, the court wrote “It is not enough to contend … that the policy was ‘neutral and proactively inclusive’” rather the court decided that the county was required to be “proactive in discouraging sectarian prayer in public settings.” By using the phrase “proactive in discouraging,” the court means people whose faith requires them to pray in the name of Jesus or some other deity need not apply.
Rather than have a policy that invites people of all faith backgrounds to give an invocation, the court evidently expects the county to screen prayers to ensure only court approved words are used or to punish those whose prayer would include a sectarian reference. When the government tells private citizens there are words they can’t say in a public prayer, that is censorship. The U.S. Supreme Court recognized that discouraging sectarian prayers is a form of controlling the content of prayers and found that exercising such control violates the Establishment Clause of the Constitution. See Lee v. Weisman. Nothing gives the government more power to establish religion than to have the government tell people how and to whom they should pray.
In the past four years, five different federal court cases have upheld public invocation policies like the one adopted Forsyth County. The decision of the 4th Circuit is out of step with these other federal courts and out of step with the U.S. Constitution.