8/14/2011—On July 29, 2011, the Fourth Circuit Court of Appeals found that Forsyth County, NC, violated the Establishment Clause of the Constitution by opening County Board of Commissioners meetings with sectarian prayer. This is a bad decision. It was written by Judge J. Harvie Wilkinson III and joined by Judge Barbara Milano Keenan. Judge Paul Niemeyer dissented.
The problem with the decision is that the Court cannot quite explain what the problem is with the Board’s policy. Pre-meeting prayer, called “legislative prayer” because of the particular context in the case that approved such prayers, Marsh v. Chambers in 1983, is constitutional. What the Board did was send a letter each November to the “religious leader” of each religious congregation in the County. The letter stated that they were eligible to deliver an invocation and could schedule an appointment on a first-come, first-serve basis. The letter emphasized that the prayers were voluntary and according to the dictates of the speaker’s conscience and asked that no conversion efforts be made nor disparagement of any other religion.
Predictably, this meant that most prayers were Christian and that Jesus was invoked expressly around 80% of the time. Sometimes there were very specific references to the Christian faith.
The plaintiffs knew what they wanted. They wanted nonsectarian prayer only. That is, they wanted the word Jesus and all other details of the Christian faith banned. That would have been a clear line. But the court did not adopt such a clear line: “Infrequent references to specific deities, standing alone, do not suffice to make out a constitutional case. But legislative prayers that go further—prayers in a particular venue that repeatedly suggest the government has put its weight behind a particular faith—transgress the boundaries of the Establishment Clause. Faith is as deeply important as it is deeply personal, and the government should not appear to suggest that some faiths have it wrong and others got it right.”
But why? If the standard is that no Jew or nonbeliever should ever have to hear Jesus’ name invoked, then why not say even one such prayer is unconstitutional? The court admits that the Board’s policy is neutral with regard to Christianity. In fact, the Board is clear that it is not endorsing any of the prayers at all.
The problem is that the court mistakes offense by observers to prayers with which they do not agree with establishment of religion. There is either a right not to have to hear a sectarian prayer at a public meeting or there is not. Apparently there is no such right. Therefore, the only right should be that the government not endorse Christianity or any other religion. Since the Board was plainly not doing so, what is the violation? Frequency of Christian prayer seems to me irrelevant as long as the government is not encouraging such sectarian prayer in any way.