By Brett Harvey – ADF Senior Counsel
In a remarkable 2-1 split decision, the U.S. Court of Appeals for the 4th Circuit – which presides over the four states of the Carolinas 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 references to Jesus in the prayers offered by private citizens were 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 U. S. 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.
What does the court mean when it finds a collection of public invocations problematic because references to Jesus were too frequent? It must mean that a few references do not pose a problem. In fact the majority opinion in Joyner states “[C]ourts should not be in the business of policing prayers for occasional sectarian references.” In effect, one local minister may pray before a county council meeting as his conscience dictates and conclude his prayer in the name of Jesus, but during the next county council meeting, another minister could be prohibited from saying the exact same prayer. The U.S. Constitution can’t mean that it’s okay for one minister to end his prayer in the name of Jesus, but the next minister is forbidden. The Constitution gives each citizen the same rights.
Unfortunately, the court provides no guidance for the county to discern what constitutes an “occasional sectarian reference.” How large of a sample size is required to know whether four references are too frequent? Four out of five may seem “frequent,” but four out of 20 may not. Even if the county did know how many is too many, how is the county supposed to enforce the “frequency” requirement? Is it the county’s job to keep track of Jesus references? Does the county have to muzzle, censor, or tackle pastors once the “too frequent” line is crossed? It is not the role of government to track prayers or to tell people how and to whom they may pray.
In the past four years, five different federal court cases have upheld public invocation policies – like the one adopted in 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.