On December 12, Judge Silver, a federal judge in Arizona, threw out a claim that Arizona Governor Jan Brewer violated the Establishment Clause by issuing day of prayer proclamations in observance of the National Day of Prayer. The court cited the Seventh Circuit’s recent ruling in FFRF v. Obama, saying “hurt feelings” don’t give someone standing to bring a federal case. The Court also said that no constitutional injury results from plaintiffs getting up to turn off the TV or avoiding conversations with people because they don’t want to hear about the prayer proclamations.

Judge Silver got it exactly right. The Establishment Clause doesn’t give anti-religionists license to roam the country or channel surf looking for things to be offended by, and then making a federal case out of them. There is no right not to be offended in America. This decision, like the Seventh Circuit’s decision in FFRF v. Obama in which ADF represented Mrs. Dobson and the National Day of Prayer Task Force, is another very important step in limiting the ability of anti-religion activist groups like FFRF to harass state and local government officials who simply want to acknowledge our nation’s religious heritage. These groups often use lawsuits and the attorney fees that come with them as a vehicle to intimidate government officials into silence about their own religious beliefs, as well as those of our Founding Fathers and the vast majority of present day Americans.

Certainly the government cannot tell people how, and to whom, to pray. But a long line of government officials like George Washington, Abraham Lincoln, Franklin Delano Roosevelt, and Ronald Reagan have encouraged people to pray because they believed it is helpful to our country and rightly acknowledges our religious heritage. Our Founders even had prayer at the Constitutional Convention. The Constitution was never meant to be used to censor this practice, and courts shouldn’t misinterpret it to do so now.

Kudos to Judge Silver for getting this one right, and to Governor Brewer for standing against special interest groups bent on silencing her and eradicating religion from all public acknowledgement.

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 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.

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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 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.

Have you ever thought about who you pray to? The name. The deity. Jabez cried out to the “God of Israel.” Daniel prayed, “O Lord, the great and awesome God….” Jesus himself, when giving us an example, prayed, “Our Father, who art in Heaven….”

The point is that, when we pray, we are communicating with God, so we call Him by His name. We are reverent. We are sincere.

It is hard to think of a practice more intimate, more to the core of a person’s religious beliefs, than the name in which a person prays. Calling to a deity is a person announcing who he believes in.

So that is why it is so odd that the government is now trying to get in the business of telling people how and to whom to pray.

Let me provide a little context. In Marsh v. Chambers, the United States Supreme Court was presented with a legal challenge to the Nebraska Legislature’s practice of permitting a chaplain to open its sessions with prayer. This chaplain, Rev. Palmer, had been hired by the Nebraska Legislature and, for 16 years, offered prayers before the legislature. According to the plaintiff, these prayers were unconstitutional because they were exclusively in the Judeo-Christian tradition, many were in Jesus’ name, and thus the prayers favored Christianity.

The Supreme Court, after reviewing all of the prayers, and after noting that the practice of legislative prayers has been going on in America since before we became a nation, found that the prayers did not violate the Constitution. The Court said,

“The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.”

So that should have settled this issue that prayers are permitted to open legislative sessions. But it didn’t. Groups like Americans United for Separation of Church and State had lost one fight but were not about to give up.  But since they could not challenge the prayers themselves, they instead attacked the deity to whose name the prayers are offered. These groups want the various town councils, counties, and state legislatures to tell people that they cannot pray to Jesus.

They want the government to tell people how and to whom to pray!

One would think that a group that calls itself “Americans United for Separation of Church and State” would not be advocating for the government to tell people how and to whom to pray.  If anything, one would think that if the town did tell people how to pray, this group would be on our side.  I mean, if “separation of church and state” means anything, it should mean that the government should not be in the business of telling people how or to whom to pray.

But that is exactly what they were asking the Town of Greece to do in the case , a case pending before the U.S. Court of Appeals for the Second Circuit.