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, the court’s view of the Constitution places new limits on how a private citizen can pray finding that public invocations cannot have “sectarian references” that are too “frequent.”
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.
America’s founders opened public meetings with prayer that included express references to the Christian faith, and the County Commissioners of Forsyth County should be able to do the same. The 1983 decision of Marsh v. Chambers is the one and only case in which the U.S. Supreme Court considered the practice of opening public meetings of deliberative bodies with a prayer. The prayers reviewed by the Court were replete with “sectarian” references, but that did not matter to the Court. The Court looked to the history of this nation and noted that public prayers before meetings were a common practice long before the nation was formed and consistently practiced throughout the country. The Court found public invocations entirely consistent with the Constitution.
The Court also noted that the first Congress formed under the Constitution settled on the final language of the First Amendment exactly three days after voting to hire a paid chaplain to offer prayers before Congress that were often explicitly sectarian, a practice still in place today. The Fourth Circuit’s decision in Forsyth County implies that the Founders were violating the Constitution as they were writing it.
The words of the First Amendment have not changed. If the Constitution protects prayer, then it protects the rights of people to pray consistently with the dictates of their own conscience, even when praying at a public meeting. 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.