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, 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.

Just before Christmas, the Fourth Circuit Court of Appeals rejected a claim that Arlington County Virginia violated the Establishment Clause when it worked with a church to develop a building that contained both a church and affordable housing. A link to the court’s opinion in Glassman v. Arlington County can be found here.

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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We reported back in June that a preliminary ruling in Kennedy v. Villa St. Catherine eroded the freedom of religious organizations. In an unusual development (and as a result of some good lawyering by St. Catherine’s attorneys), the Fourth Circuit Court of Appeals agreed to go ahead and review that ruling early. ADF, on behalf of itself and the National Association of Evangelicals, recently filed an amicus brief in the case, urging reversal of the lower court’s dangerous ruling.

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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