By Tami Fitzgerald
Christian Action League
In a lawsuit challenging the prayer policy of the Forsyth County Commissioners, a federal magistrate has recommended that prayers offered in the name of Jesus before the Commissioners’ meetings are unconstitutional and should be banned. What makes the prayers unconstitutional, according to Magistrate P. Trevor Sharp’s November 9th recommendation, is specific references to “Jesus, Jesus Christ, Christ, Savior, or the Trinity.”
The recommendation came in a federal lawsuit filed in March, 2007 by three members of the Forsyth chapter of Americans United for Separation of Church and State, Janet Joyner, Constance Lynn Blackmon and Osborne Mauck. They are represented in the case by the American Civil Liberties Union (ACLU) of North Carolina. In April, 2007 the Forsyth County Commissioners voted 4-3 to fight the ACLU’s lawsuit, and they are represented in the case by the Alliance Defense Fund. Mike Johnson, Senior Litigation Attorney for ADF in the case said after the Magistrate’s recommendation: “The practice of allowing uncensored prayers before government meetings dates back to the Founders’ era. There is no reason to silence this cherished American tradition now.”
The final decision of the U.S. District Court will be made by Chief U.S. District Judge James A. Beaty, Jr. who is not bound to accept the Magistrate’s recommendation. He can reject it or ask for it to be modified. Forsyth County Commissioners have until November 27, 2009 to object to the recommendation, and Judge Beaty is expected to rule on the case in January, 2010.
The Forsyth County Commissioners’ prayer policy provides that the Clerk of the Board sends out a letter annually to all clergy in the County inviting them to voluntarily pray before a Board meeting “according to the dictates of [the leader’s] own conscience.” To comply with the U.S. Supreme Court’s rulings on prayer before public meetings, the letter “requests only that the prayer opportunity not be exploited as an effort to convert others to the particular faith of the invocational speaker, nor to disparage any faith or belief different than that of the invocational speaker” and to maintain a “spirit of respect and ecumenism.” The Clerk is instructed to make every reasonable effort to make sure a wide variety of clergy are included every year, but clergy members sign up on a first-come basis. The content of the prayer is to be left up to each clergy member and the prayer is to be offered before the official beginning of the meeting. The policy specifically states that it is not intended to express a preference or affiliation to any specific faith or religion.
Magistrate Sharp found in his recommendation that only 7 of 33 prayers between May 29 and December 15, 2008 did not make reference to “Jesus, Jesus Christ, Christ, Savior, or the Trinity,” and that none of these prayers invoked any other deity associated with a faith other than Christianity. Even though the prayers were given before the official start of the meetings and the Commissioners exercised no control over the content of the prayers, the Magistrate ruled they were “government speech” and subject to the limitations of the Establishment Clause, which says that “Congress shall make no law respecting an establishment of religion…”
Interpreting the Establishing Clause to prohibit government from “prefer[ring] one religion over another,” Magistrate Sharp relied on other cases from the Fourth Circuit Court of Appeals, which includes North Carolina, to conclude that all prayers before government meetings must be “non-sectarian,” meaning they cannot invoke a deity other than “God.” Sharp stated that the prayers before the Forsyth County Commissioners’ Board meetings:
[C]annot be considered non-sectarian or civil prayer. They display a preference for Christianity over other religions by the Government. The frequent references to Jesus Christ cause the prayers to promote one religion over all others…, and thus the effect of these prayers is to affiliate the Board with a specific faith or belief.
Although he acknowledged that Forsyth’s prayer policy did many things right, such as its goal to include a “wide variety of speakers from diverse religious faiths,” Magistrate Sharp concluded that the actual prayers given under Forsyth’s policy do not reflect this diversity. Therefore, he concluded, the prayers violate the Establishment Clause of the U.S. Constitution.
Forsyth Commissioners argued that the speech was private speech, not government speech, because it was offered by private citizens, not County Commissioners, on a volunteer basis before the start of the meeting. Further, they argued that the First Amendment guarantees these private citizens the freedom of speech to pray in the name of Jesus without having the government censor their speech. As so long as there has been no exploitation as a result of the prayer (i.e. the prayer giver was not trying to proselytize or to advance one religion or disparage another), they argued, the content of the prayer is irrelevant. Their reasoning was based on Marsh v. Chambers, the U.S. Supreme Court’s primary prayer case, where the Court spelled out the principle that:
The content of the prayer is not of concern to judges, where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.
Federal Circuit Courts across the Country have differed on sectarian prayer. For instance, in the 11th Circuit, the court has ruled that sectarian references are not necessarily unconstitutional in prayers before government meetings. Since Circuit Courts disagree, the U.S. Supreme Court is more likely to step in and bring clarity to the constitutionality of sectarian prayer. The Forsyth case could be the case that causes the Supreme Court to hear the issue.
The lawsuit against Forsyth County is part of a state-wide strategy by the ACLU to intimidate county and city governmental bodies into banning prayer before public meetings. The ACLU wrote letters in 2007 to several other counties besides Forsyth and several cities across the State asking them to drop sectarian prayers.
Yadkin County commissioners agreed in March 2007 to drop sectarian references from pre-meeting prayers, which are given by the county attorney. “I’m glad we are doing what we are doing,” said Chad Wagoner, the chairman of the Yadkin County Board of Commissioners. “We have a nonsectarian prayer. We don’t pray in Jesus’ name. I hate to use the word generic, but our intent was to preserve the sanctity of prayer and be inclusive and respectful of all deities.” Yadkin officials determined that fighting the ACLU was “too expensive,” Wagoner said.
Thomasville had a different response in 2007. The city council voted 6-1 to approve a policy allowing sectarian prayer. In Thomasville, council members take turns giving the prayer and sometimes make sectarian references, town officials said. As in Forsyth, the prayer in Thomasville is considered to be something that happens before the start of the meeting.
County Commissioners in Forsyth County are facing mounting pressure to end the lawsuit and back down to the demands of the ACLU. The editorial board of the Winston-Salem Journal has called for Commissioners to back down. While ADF has promised to pay for the county’s defense, it has not agreed to pay the ACLU’s legal fees if the county ultimately loses. North Carolina Partnership for Religious Liberty, a local group of private citizens headed by Stephen Corts, has promised to pay legal fees assessed against the county up to the amount it has on hand, estimated recently at about $55,000. Corts said after the recommendation that the N.C. partnership “stands ready to go all the way to the Supreme Court if the county so chooses.” The group believes that it can raise more money should the county appeal.