Invocation Revocation

Federal Appeals Court Rules That North Carolina County’s Sectarian Prayer Practice Violates Constitution, But The Battle May Go On

In a major win for church-state separation, a federal appeals court has struck down a North Carolina county’s policy of relying almost exclusively on Christian prayers to open its meetings.

The 4th U.S. Circuit Court of Appeals ruled 2-1 July 29 that Forsyth County’s use of sectarian prayer is a violation of the separation of church and state in a case brought jointly by Americans United, the American Civil Liberties Union and the North Carolina ACLU.

“This decision affirms that all Americans are equal regardless of their beliefs about religion,” declared Americans United Legal Director Ayesha N. Khan. “The government must never send the signal that one faith has preferred status.

“When Americans go to government meetings, they should feel welcome regardless of their beliefs about religion,” Khan continued. “The Forsyth board’s regular use of Christian prayer clearly violated the separation of church and state.”

Plaintiffs in the Joyner v. Forsyth County lawsuit are Janet Joyner and Constance Lynn Blackmon, two county residents and members of the Winston-Salem Chapter of Americans United.

“I am very happy with the court’s ruling today because this court order preserves freedom of conscience for people of all different beliefs, whether they are in the majority or the minority, by requiring our government to remain neutral in matters of religion,” Blackmon said in a press statement.

The case was filed in 2007 after Americans United and the ACLU tried unsuccessfully to persuade the Forsyth County Board of Commissioners to stop opening its meetings with Christian prayers.

Joyner, a longtime resident of Winston-Salem, told Church & State in 2007 that she got involved in the case in part because of her family heritage. Her ancestors were Calvinists who faced persecution in officially Catholic France more than 300 years ago. (See “Invocation Confrontation,” May 2007 Church & State.)

Joyner wanted all county residents to feel comfortable at board meetings and believed the board’s endorsement of one type of religion made that difficult. She did some research on the matter and found that from January 2003 until October of 2006, every prayer offered at board meetings was Christian in nature with one exception – an invocation offered by a Unitarian Universalist minister.

After the ACLU and AU began looking into the matter, the board tried hastily to be a little more diverse. Members invited a rabbi for one meeting, but Christian invocations remained the norm. From May 29, 2007, until Dec. 15, 2008, 26 of the 33 invocations given contained at least one reference to Jesus, Jesus Christ, Christ, Savior or the Trinity.

The appellate court majority said that was clear evidence of government favoritism toward Christianity.

“Faith is as deeply important as it is deeply personal,” wrote Judge J. Harvey Wilkinson, “and the government should not appear to suggest that some faiths have it wrong and others got it right.”

Added Wilkinson, “Because religious belief is so intimate and so central to our being, government advancement and effective endorsement of one faith carries a particular sting for citizens who hold devoutly to another.

Concluded Wilkinson, “[C]itizens should come to public meetings confident in the assurance that government plays no favorites in matters of faith but welcomes the participation of all.”

Wilkinson noted that government has an obligation to avoid fostering religious divisiveness.

“As our nation becomes more diverse, so also will our faiths,” he wrote. “To plant sectarian prayers at the heart of local government is a prescription for religious discord. In churches, homes, and private settings beyond number, citizens practice diverse faiths that lift and nurture both personal and civic life. But in their public pursuits, Americans respect the manifold beliefs of fellow citizens by abjuring sectarianism and embracing more inclusive themes.”

Officials in Forsyth County resisted efforts to end the use of Christian prayers or move to non-sectarian invocations, a practice courts have permitted.

The battle quickly became a flashpoint for a local culture war. A delegation of Baptist ministers had earlier urged the city of Winston-Salem to continue using Christian invocations. Officials in that city spurned the clerics’ push and said they would adopt a more inclusive prayer policy.

But in Forsyth County, defiance remained the order of the day. Gloria D. Whisenhunt, then chair of the Board of Commissioners, announced that the practice of opening its deliberations with Christian prayer was a tradition that would continue.

In doing so, the board ignored advice from its own attorney, Davida Martin, who had asserted that employing sectarian prayers was unconstitutional. Opponents of the policy pointed out that in 2004, the 4th Circuit ruled in Wynne v. Town of Great Falls that a South Carolina community could not open its meetings with prayers that invoked Jesus. The following year, the 4th Circuit reaffirmed the use of non-sectarian prayers in Simpson v. Chesterfield County.

The board, prodded by the Alliance Defense Fund (ADF), ignored court precedent and refused to alter its policies. A local Southern Baptist pastor, the Rev. Steve Corts of Center Grove Baptist Church in Clemmons, announced he would raise money for the county’s legal defense.

But despite all of the grandstanding, the county has not fared well in court. In November of 2009, U.S. Magistrate Judge P. Trevor Sharp issued a finding that the county’s prayer policy violated the Constitution.

A few months later, U.S. District Judge James A. Beaty Jr. confirmed Sharp’s take.

Observed Beaty in his decision, “This Court honors and respects those rights that all citizens share to express their religious beliefs freely and to pray in the manner that each believer by his or her own faith may be led. However, the present case does not involve any infringement of the private rights of citizens to Free Speech or Free Exercise of Religion. Instead, this case involves only the sole question of whether the Government has endorsed a particular belief or faith in violation of the Establishment Clause.”

The appellate court majority’s 28-page decision affirms that ruling.

On the heels of yet another loss, the ADF vowed to appeal, and on Aug. 8, the Board of Commissioners voted 6-1 to take the case to the U.S. Supreme Court.

The lone dissenter, Commissioner Walter Marshall, told the Winston-Salem Journal that the board is wasting its time.

“We have gone two rounds now and have no results,” Marshall said. “The right wing has their faith in the Supreme Court – that is where their hope lies.”

In a press statement, ADF attorney Mike Johnson insisted that the 4th Circuit’s ruling was misguided.

“America’s founders opened public meetings with prayer,” Johnson said. “There’s no reason that today’s public officials should be forced to censor the prayers of those invited to offer them simply because secularist groups don’t like people praying according to their own conscience.”

Another ADF attorney, Brett Harvey, accused AU and the ACLU of “advocating censorship.”

In fact, America’s founders did not always open public meetings with prayers. There were no official prayers during the most important government meeting – the Constitutional Convention.

When prayers are offered during government meetings, AU argues that officials must bear in mind that they represent a diverse constituency of people from many faith groups as well as those of no particular faith.

For this reason, Americans United recommends that government bodies either use no official invocations or open with a moment of silence. Under this policy, members of a government body would be free to pray on their own as guided by conscience but would not presume to pray on behalf of an entire community, state or nation. If a municipality insists on opening with prayer, their entreaties must be inclusive and ecumenical, not sectarian and divisive.

Reflecting on her involvement with the case, Joyner told Church & State that she viewed the courtroom battle as crucial to maintaining individual rights.

“The essence of religious freedom is the right of individual conscience,” Joyner remarked. “In matters of conscience, there is no majority rule. This case is about protecting the rights of all citizens to conduct their business before their government without pressures, either subtle or blatant, to conform to religious practices to which they do not adhere.”