By Brett Harvey – ADF Senior  Counsel

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 too many Christians volunteered to pray and included references to Jesus in the 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 the county for its demographic make-up 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.

Religious leaders from all faith backgrounds in Forsyth County were treated exactly the same.  The court acknowledged that each was given the same opportunity to volunteer and were accepted on a first come basis.  Unfortunately the court was not satisfied with a “take-all-comers” policy reasoning that such a policy would favor the majoritarian faith in the community.  The county can only be responsible to establish a neutral policy.  The county has no control over who volunteers to pray.

The dissenting judge correctly noted that the majority’s “argument fails to recognize that the nature of the prayer was not determined by the county . . . . The frequency of Christian prayer was, rather, the product of demographics and the choices of the religious leaders who responded out of their own initiative to the County’s invitation.  The county provided the most inclusive policy possible, but it could not control whether the population was religious and which denominations’ religious leaders chose to accept the County’s invitation to offer prayer.”  The dissent recognized that the position of the majority encourages the county to establish “sectarian quotas.”

According to the rationale of the majority, the policy adopted by Forsyth County could be implemented in New York City without a problem because of the religious diversity of the population, but not in Forsyth County because there are just too many Christians.  The Constitution should protect the rights of the people in Forsyth County to the same extent that it protects the rights of people in New York City.

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.

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