Friday, July 29, 2011

Divided 4th Circuit Says County's Invocation Policy Violates Establishment Clause

In Joyner v. Forsyth County, North Carolina, (4th Cir., July 29, 2011), the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that  the prayer policy of a county commission violated the Establishment Clause even though the policy was neutral on its face. All congregations in the community were invited to send a religious leader to lead an invocation at one of the commission meetings. As implemented, however, all those who delivered prayers were Christian, nearly 80% of the prayers delivered mentioned Jesus, and none mentioned any other deity. This policy "resulted in sectarian invocations meeting after meeting that advanced Christianity..."  The majority added:
This is not to say that the Board must abandon the practice of legislative prayer. Nor do we wish to set forth some sort of template for an ideal legislative prayer policy....  The bar for Forsyth County is hardly a high one. Public institutions throughout this country manage to regularly commence proceedings with invocations that provide all the salutary benefits of legislative prayer without the divisive drawbacks of sectarianism.... And religious leaders throughout this country have offered moving prayers on multitudinous occasions that have managed not to hurt the adherents of different faiths.
Judge Niemeyer, dissented, arguing that the county's policy is completely neutral and proactively inclusive, allowing religious leaders to deliver invocations they compose. He insisted: "The Establishment Clause does not require the County to forbid invocational speakers from making sectarian references in their prayers." Summarizing his concerns, the dissent wrote:
The majority’s decree commands that every legislative prayer reference only "God" or some "nonsectarian ideal," supposedly because other appellations might offend. Thus, in a stated sensitivity to references that might identify the religion practiced by the religious leader, the majority has dared to step in and regulate the language of prayer—the sacred dialogue between humankind and God. Such a decision treats prayer agnostically; reduces it to civil nicety; [and] hardly accommodates the Supreme Court’s jurisprudence in Marsh v. Chambers....
(See prior related posting.) [Thanks to Rob Luther for the lead.]

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