A matter of opinion: Judges, attorneys differ on sectarian prayer ruling

An appeals court ruling against sectarian prayer at government meetings says it's not just the prayer policy that matters, but the outcome — the actual prayers given — as well.

On July 29, a panel of the 4th U.S. Circuit Court of Appeals in a 2-1 decision ruled in favor of residents who sued the Forsyth County Board of Commissioners in 2007 to stop the board from allowing Christian prayers to be given before its meetings.

On Monday, the board is expected to vote in favor of appealing that ruling to the U.S. Supreme Court. Six of the seven commissioners have said they will vote in favor of an appeal.

Under the county's prayer policy, any member of the clergy could volunteer to offer a prayer, without any controls on what could be said. Clergy were asked to avoid using their time at the microphone to try to convert others.

The county's policy explicitly said the county was not aligning itself with any faith by allowing prayers.

Because 80 percent of the prayers referenced Christian beliefs, the court majority said, and because no non-Christian deity was ever mentioned in a prayer, the county's policy violated the Constitution "by advancing and endorsing Christianity to the exclusion of other faiths."

"This is not a situation where all religions were represented," said Katherine Parker, the attorney for the American Civil Liberties Union who argued the case for the residents objecting to sectarian prayer. "Here, the only deity that has been referenced is Jesus."

The county has argued that leaders of non-Christian faiths have given the opening invocation at board meetings. But since the issue became controversial in 2007 and the county adopted its prayer policy, no non-Christians faith leaders have stepped forward to pray. Two area Jewish rabbis have said they would not give even a nonsectarian invocation unless the county changed its policy to forbid sectarian prayers.

The 4th Circuit court majority — Judges J. Harvie Wilkinson III and Barbara M. Keenan — ruled that to be constitutional, invocations "must consist of the type of nonsectarian prayers that solemnize the legislative task and seek to unite rather than divide."

Writing a separate minority opinion in dissent, Judge Paul V. Niemeyer said the county's policy is "neutral" and that it was not the county's fault that so many Christian prayers were offered under it.

"The county provided the most inclusive policy possible, but it could not control whether the population was religious and which denominations' religious leaders chose to accept the county's invitation to offer prayer," Niemeyer wrote.

"Effectively, they are being punished for the demographics of the community they serve," said Mike Johnson, the attorney for the Alliance Defense Fund who argued the county's case.

Wake Forest University law professor John Korzen said he's not surprised that the appeals court split on a First Amendment case, because it "goes to the real core of what America is."

"The majority was saying that it is both the policy and the practice that matters," Korzen said. "(They say) that it is what actually happens that advances a sect. The dissenting judge says that the policy matters because that is what the government has done and the speakers are not from the government."

Both the majority and minority opinions acknowledge another ruling in the 11th Circuit, in which an appeals court found that various opening invocations with references to "Jesus; Allah; the God of Abraham, Isaac and Jacob; Mohammed; and Heavenly Father" passed constitutional muster when given at Cobb County, Ga., governmental meetings.

The court majority said its ruling in the Forsyth case does not conflict with the one in Cobb because in Forsyth only Christian beliefs were referenced in prayer. In the 11th Circuit case, the court majority said, the diversity of faiths represented showed that Cobb County did not advance a particular faith.

The different rulings show that legislative prayers are "a hard area to put hard and fast rules on," Korzen said.

"(Cobb) turned on what the lower court found, and the lower court found that the invocations did not advance religion," Korzen said. "(The case) also said that these cases are not decided by bright-line rules. The majority (in the Forsyth case) said that the facts were different."

How the Supreme Court looks at the differences between the Cobb and Forsyth cases could be key in whether it takes up the county's appeal.

The county and the dissenting appeals court judge argue that the 4th Circuit decision has created what is known as a "circuit split" between the 11th and 4th circuits over whether sectarian references are allowed in prayer.

Johnson said that increases the likelihood that the Supreme Court would step in to resolve the differences.

But the 4th Circuit majority and the ACLU see no circuit split.

"Judge Wilkinson wrote in his decision that the court ruling does not create a circuit split," Parker said. "I disagree with Mike Johnson's analysis. It is unusual for the Supreme Court to take a case and unlikely for the court to take this one."

Korzen said he doesn't see a clear circuit split but added that it doesn't mean the Supreme Court won't take up the case, either.

"The opinions (in both circuits) seem pretty much based on what actually happens on the ground — not just the policy but the prayers over a period of time," Korzen said. "There is a concept called a shallow split, when there have not been that many circuit decisions."

Korzen said the Supreme Court takes only 4 percent to 5 percent of the cases presented to them, excluding petitions from prisoners wanting reviews of their cases.

"They usually don't explain why they are taking a case," Korzen said. "It is still long odds."