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 too many “sectarian” references would make people feel uncomfortable.

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.

If too many “sectarian” references are a problem, what is a “sectarian” reference?  The majority opinion doesn’t attempt to define it, and for good reason.  The only two federal courts that have tried to distinguish between what is “sectarian” and what is “non-sectarian” have come to the conclusion that it is a “vague and unworkable standard.” See Galloway v. Town of Greece and Pelphrey v. Cobb County.  In the Forsyth case the plaintiffs who brought suit thought a reference to Jesus was “sectarian” but a reference to Allah was not.  How many denominations or faith traditions have to agree before it is “non-sectarian?”  The Forsyth majority objects to references of a “redeemer,” but many faiths include a concept of redemption.  Doesn’t a singular reference to God seem sectarian to a Hindu, Buddhist, or Wiccan that believes in many gods?  Or for that matter, doesn’t any reference to God seem sectarian to an atheist?

Part of the problem is that identifying a “sectarian reference” requires understanding the context in which a word is used by a particular faith.   Understanding context requires theological analysis.  For example, in an different court decision, the same judge who wrote the majority opinion in Forsyth found a reference to “King of kings and Lord of lords” to be “non-sectarian” despite the fact that it is a specific title given to Jesus Christ in Revelation 19:16. A Constitutional standard cannot require a government official to know whether or not a reference can be broadly applied to one faith or is exclusive to a particular faith.

The Constitution prohibits the government from deciding which religious words are acceptable and which are not, even if the goal is to make people feel more comfortable.  That is why the Supreme Court noted that a good-faith effort to prevent sectarian references to avoid religious animosity or promote a sense of community does not justify the government getting involved in editing the content of prayers.  The High Court stated “[T]hough the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself.”  See Lee v. Weisman.

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.

Please share your comments below and to join the conversation join our facebook page Facebook.com/SpeakUpChurch

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.

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 policy was struck down in part because the court showed a fundamental misunderstanding about the purpose of prayer.

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.

The majority opinion decided that legislative prayer is about “acknowledging the ways in which it can bring together citizens of all backgrounds and encourage them to participate in the workings of their government.”  This is a fundamental misunderstanding that confuses a potential incidental benefit with a purpose.  It may be that a prayer can highlight public virtues and laud a common ethic that encourages others to act, but that is not its purpose. If that were the purpose, it would not be a prayer at all.  It would be an exhortation or motivational encouragement targeted to those within earshot.  Rather a prayer is a petition to God.  The intended audience of a prayer is the deity to whom the prayer is offered, not the human audience.

A public prayer is intended to beseech God for guidance and blessing.  The majority opinion reduces prayer to a civil nicety or a tradition void of any religious significance.  That is not at all what the founders of this nation thought about prayer.  The purpose of public prayer can be encapsulated in the following account:

During the Constitutional Convention the delegates were at an impasse.  On June 28, 1787, Benjamin Franklin suggested the congress pray for guidance. He retold how the Continental Congress had asked for divine aid at the start of the Revolutionary War.

“Our prayers, sir, were heard, and they were graciously answered,” he said. “And have we now forgotten that powerful Friend? Or do we imagine that we no longer need his assistance? I have lived, sire, a long time, and the longer I live the more convincing proofs I see of this truth: that God governs in the affairs of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid?”

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.

Please share your comments below and to join the conversation join our facebook page Facebook.com/SpeakUpChurch

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.

Please share your comments below and to join the conversation join our facebook page Facebook.com/SpeakUpChurch

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 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 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.

The majority opinion determined that occasional sectarian references are acceptable, but the court disapproved of a collection of prayers in which the “sectarian” references were too “frequent.”  In practice, how can the county comply with the court’s ruling?  The county can either ban “sectarian” references outright or stop them after the number of references approaches a mystery number that becomes too “frequent.”  The impact of this rule is to categorically exclude people who believe that a prayer needs to reference the deity to whom it is directed from participating in the public invocation.

There are some Christian denominations that require a prayer to be offered in the name of Jesus.  This belief is rooted in a theological understanding about the relationship between God and man.   But the impact of the Majority’s opinion is not limited to Christians.  For religions that worship many gods or goddesses, how does a prayer giver focus their petition?  Unfortunately, the decision by the majority has sent a message to people whose faith requires them to pray in the name of Jesus or some other deity – you need not apply.

The majority opinion has unwittingly elevated and preferred the religious practices of those without a conviction concerning the naming of a deity above those who do not.  The Constitution should respect the prayers of all citizens.  The government has no business telling people how and to whom they can 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.

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.

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.

First Baptist Church of Clarendon, Virginia had a problem – it needed a new church building and it wanted to provide affordable housing for people in an urban area of Arlington County. The church agreed to raze its existing place of worship, and in its place erect a building that contained church facilities on the first two floors, and apartments on the upper eight floors. The church financed the construction of its portion of the building, and Arlington County and the federal government financed the construction of the apartments. This was a win-win situation for everyone except for a local resident who opposed the project, Peter Glassman.

Mr. Glassman argued that the government cannot work with a church – even if they have mutual goals.  And he was particularly concerned that the church and the apartment residents would both share the same lobby and elevator.  Even worse, the tenants of the affordable housing would actually be exposed to a church steeple!

The Court of Appeals rejected all these arguments out of hand. Citing well-established Supreme Court precedent (Agostini v. Felton), it properly observed that the Establishment Clause “does not prohibit all interaction between church and state. To the contrary, interaction between church and state is inevitable, and we have always tolerated some level of involvement between the two.”

The court concluded that this was a “legitimate joint effort of the Church and the County to bring about the development of a real estate project, in which the Church funds construction of the portions to be used for sectarian purposes and the County funds construction of the portions to be used for the secular purpose of providing affordable housing.”

The Establishment Clause was meant to prohibit the government from establishing a church as the state religion, not keep churches from working with the government to help provide people with affordable housing.

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In the brief, we explain that the District Court undermined the freedom of religious organizations when it allowed the plaintiff’s religious harassment and retaliation claims against a Catholic institution to go forward.  Villa St. Catherine is a Catholic nursing center that the District Court recognized is exempt from the religious discrimination prohibitions of Title VII.  Congress wisely included this exemption so that religious organizations can maintain their religious character.  This makes constitutional and practical sense. A Jewish ministry to the poor should not have to adjust its workplace requirements so that a Muslim would feel comfortable accomplishing its religious goals, and vice versa.  When government entangles itself in the employment decisions of religious organizations, it violates the First Amendment’s protection of religious freedom. 

The District Court’s order results in the nonsensical legal reality that St. Catherine could have simply fired Kennedy because she was not Catholic, but could not require her to dress and act in a way that does not conflict with the Catholic beliefs of the institution and the people it serves.  This makes an end run around Congress’ well-conceived efforts to protect religious organizations from liability when they ensure their employees’ religious beliefs comply with their own.  More significantly, it violates the religious freedom of religious organizations by exposing them to liability for simply teaching employees their doctrine, and requiring them to act in compliance with it while at work.

Hopefully, the Fourth Circuit will agree and undo the lower court’s unfortunate limitation of religious liberty.

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