By Sarah Hastings Bowman
Christian Action League
Alliance Defense Fund attorneys representing the Forsyth County Board of Commissioners filed a petition Oct. 27 asking the United States Supreme Court to rule on whether the words used in a prayer can be regulated.
The suit, Joyner v. Forsyth County, was initiated in 2007 by the ACLU (American Civil Liberties Union) and the Americans United for Separation of Church and State on behalf of two Forsyth County claimants, Janet Joyner and Constance Blackmon. Joyner and Blackmon claim the sectarian references allowed in the opening prayers of the Forsyth County Board of Commissioners’ meetings offended them and violated the 1st Amendment. Earlier this year, the Fourth Circuit Court found the Board’s policy neutral on its face, but held that the county had an affirmative duty to purge sectarian references; in other words, the county had a duty to regulate the language used in the prayers.
There are two questions presented to the Supreme Court for its review in the petition:
1) Whether the Establishment Clause compels the government to parse the content of legislative prayers to eliminate “sectarian” references.
2) Whether the “frequent” presentation of legislative prayers that include a “sectarian” reference violates the Establishment Clause.
Legislative prayers include any prayer offered at the opening of a governmental session to indicate the serious nature of the proceedings about to begin and to in fact signify the beginning of the session. The tradition of legislative prayer is a national institution in the United States and has been since the Colonial period. Furthermore, the Supreme Court has already reviewed the Constitutionality of legislative prayer in Marsh v. Chambers in 1983 where the majority affirmed, “the opening sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.” (Marsh v. Chambers, 463 U.S.783 (1983))
The Establishment Clause, as it has become known, is found within the 1st Amendment to the United States Constitution and reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” This phrase has long been interpreted to require review of anything relating to religion, particularly Christianity, when it is in close proximity of government activity such as at a government meeting.
Joyner and Blackmon argue in their complaint the sectarian words, or statements within the prayers identifiable with a particular religion or denomination, violated their rights under the 1st Amendment and the Supreme Court’s tradition of opinion on the issue. The Fourth Circuit agreed and ruled the content of the prayers should be parsed or edited and went so far as to say “the deep beliefs of the speaker afford only more reason to respect the profound convictions of the listener. Free religious exercise posits broad religious tolerance”. (Joyner v. Forsyth No. 10-1232, 4th Cir. July 29, 2011) In application this means if you are exercising your religion in public you better make sure it is only in a manner that will not offend anyone who sees or hears you. As Justice Niemeyer stated in his dissent, this “is precisely the content-inquiry that Marsh intended to foreclose.” (Joyner)
Finally, the Court has also previously addressed whether the frequency of a particular sectarian viewpoint is a prohibited practice, and the Fourth Circuit’s ruling is in direct conflict with the previous rulings. Again, in Marsh, citing other rulings, the Court stated, “the individual claiming injury by the practice is an adult, presumably not readily susceptible to ‘religious indoctrination’ or peer pressure…it is simply a tolerable acknowledgement of beliefs widely held among the people of this country.” As the petition states, “the Forsyth County Board of Commissioners invited local leaders of every faith in the county to volunteer on a first-come, first-served basis to deliver an invocation” each year, and they even made efforts to include religions and denominations previously not present in the county. Therefore, any sectarian frequency is a mere reflection of the religious profile of the community. The Fourth Circuit affirmed the Constitutionality of the county’s policy, but went on to make a ruling which, according to the petition, “imposes an unwieldy requirement on government to police the language of prayers” despite the Supreme Court’s clearly stated prior opinion.
It is still uncertain whether the case will be heard by the Court to potentially overrule the Fourth Circuit. If the petition is one of the few heard this year, it would be an opportunity for the Court to uphold Marsh and protect religious freedom or to significantly diminish it.
Sarah Hastings Bowman is the new Director of Development for the Christian Action League of North Carolina. She is a graduate of the Norman Adrian Wiggins School of Law, Campbell University, 225 Hillsborough St., Raleigh, N.C.