A three-judge panel of the U.S. Court of Appeals for the 4th Circuit had tough questions Thursday for attorneys on both sides of a dispute over invocations given before meetings of the Forsyth County Board of Commissioners.
At issue was whether prayers have to be free of sectarian content, such as references to Jesus, other elements specific to Christianity or any particular faith.
Last year, a federal district court judge issued a ruling that stopped Forsyth County from allowing those kinds of prayers. Residents who objected to the prayers filed suit to stop them in 2007.
The county appealed, which brought attorneys for both sides before the court in Richmond.
The county has not had prayers of any kind since the 2010 ruling but formerly operated under a "first-come, first-served" policy that allowed clergy to volunteer to give invocations, with no restriction on how they could pray.
Judge J. Harvie Wilkinson, the senior judge among the three hearing Thursday's arguments on appeal, at one point said that the county's policy seemed geared to favor the "faith of a majority of residents in the county."
"The result of the policy is that the prayer is overtly sectarian," Wilkinson later said.
Mike Johnson, the attorney representing the county, said that the county's policy was unbiased because any member of the clergy could pray.
Later, Wilkinson seemed critical of the plaintiffs' argument that all sectarian references were constitutionally forbidden.
"You can't put yourself in a position where any reference to a deity invalidates a whole policy," Wilkinson said. He went on to suggest that the court was trying to balance the need to avoid sectarianism with the need to keep the county from having to monitor the contents of prayer.
Katherine Parker, the attorney for the residents who sued the county, said that despite the wording of the county policy, the real effect — as shown by the prayers that have been prayed — was to advance Christianity by the county government.
The judges gave no indication when they might make a ruling. The small courtroom was packed and people stood in the hall and doorway to listen. Constance Blackmon and Janet Joyner, the plaintiffs, were there to listen to the arguments.
Forsyth County commissioners didn't attend because they are preparing to receive the county manager's proposed budget this afternoon. Johnson said that Commissioner Gloria Whisenhunt had told him that the board was there "in spirit."
"At least some of them are," Johnson said after the hearing, a reference to how the board has been divided over whether to appeal.
It was not clear whether any of the sectarian-prayer advocates who have pledged to support the county's case financially had made the trip — none could be found after the hearing was over.
Blackmon said she "hopes for the best" in her case.
"Obviously … we have no idea how this is all going to turn out," she said.
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