4th Circuit Court of Appeals hears Forsyth County Commission prayer case

by Keith Barber

Richard Groves, retired pastor of Wake Forest Baptist Church, was one of a number of concerned citizens who attended a May 12 hearing on prayer before public meetings last week at the 4 th US Circuit Court of Appeals in Richmond, Va. (photo by Keith T. Barber)

A three-judge panel of the 4th US Circuit Court of Appeals heard oral arguments last week from attorneys representing Forsyth County and two Forsyth County residents in the debate over sectarian prayer at the beginning of meetings of the Forsyth County Commission.

Katy Parker, legal director for the American Civil Liberties Union of North Carolina, represented Forsyth residents Janet Joyner and Constance Blackmon. Parker argued that legal precedent has established that sectarian prayer — prayer that invokes a specific deity like Jesus — at government meetings is unconstitutional. Sectarian prayers exclude religious minorities, which is what the Establishment Clause of the First Amendment was designed to prevent.

The Establishment Clause of the First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Mike Johnson, a former senior legal counsel for the Alliance Defense Fund, represented Forsyth County. Johnson argued that the Forsyth Commission has created a policy that establishes a designated public forum before its meetings and opened the podium to anyone who wishes to give an invocation. The government has no role or authority to censor the prayers that are offered, Johnson argued.

Last week’s hearing marks the latest development in a legal battle that began three years ago when the ACLU filed a lawsuit on behalf of Joyner and Blackmon, who objected to sectarian prayers being spoken at the start of meetings of the commission. The lawsuit stated that sectarian prayer given at public meetings represents a violation of the constitutional rights of all Forsyth County residents.

Last year, US District Court Judge James Beaty ruled in favor of Joyner, Blackmon and the ACLU, stating that the use of sectarian prayer at the beginning of Forsyth County Commission meetings violates the First Amendment. Judge Beaty’s ruling came in response to an objection filed by Forsyth County in December 2009. The county objected to an earlier decision by US Magistrate Judge Trevor Sharp that prayer at Forsyth County Commission meetings are sectarian, and therefore, unconstitutional.

Parker said she thought last week’s hearing went well but it’s impossible to predict how the judges will rule.

“All our clients want is to be able to go to meetings and not be subjected to sectarian prayers and not be made to feel like outsiders by their own government,” Parker said.

Ayesha Khan, legal director for Americans United for Separation of Church and State, also attended last week’s hearing. Khan said she’s confident both the facts and the law are on the ACLU’s side.

“The case really presents nothing new,” Khan said. “We are simply asking the court to apply longstanding precedents in decisions the court has made before.”

Khan added that prayer at public meetings should be inclusive of all people so that religious minorities and nonbelievers don’t feel excluded before what is after all their government, too.

Johnson said he also felt confident the county would prevail in the appeals process. Johnson said he was pleased by the judges’ questions, which indicated “the court has a firm grasp of the issues and an understanding of the importance of the issues.”

Richard Groves, the retired pastor of Wake Forest Baptist Church, was one of a number of concerned Forsyth County citizens who traveled to Richmond, Va. to attend last week’s hearing. Groves said he was impressed by the informality of the hearing and the intellectually stimulating dialogue between the three judges and the lawyers.

“I anticipated that an attorney would make a speech and [the judges] would maybe ask a few questions,” Groves said. “The attorneys didn’t get to make their speeches. They would make a comment or two and be interrupted with questions and that would lead to more questions.”

Groves said he does not support the county’s decision to appeal Judge Beaty’s ruling.

Several years ago, Groves sent a letter to the Forsyth County Commission and Winston- Salem Mayor Allen Joines stating that he would no longer accept invitations to give invocations before commission meetings or city council meetings.

“To me, it had become more of a political issue than a matter of actually praying,” Groves said. “Anybody can pray for the county commissioners anytime during the day or night anywhere they are; anybody can pray. But the issue is, who gets to pray in front of a microphone on local TV at the county com missioners office? Who gets to do that? That’s the issue — it’s the image, it’s the publicity. This is not about praying for the county commissioners…. This is about whose image gets up there, whose religion is up there.”

Parker said the issue boils down to whether prayers given at government meetings should be considered private speech or government speech. When people speak on behalf of the government, they become a government mouthpiece and must do as the government does, which is to remain neutral on religion, Parker said.

Joyner also attended last week’s hearing.

She said an invocation at a government meeting should not be a platform for a private individual to publicly practice or impose their religion.

“It is the government’s responsibility to conduct its meetings so that all citizens may fully participate without pressure to conform to, or affirm, any particular religion,” Joyner said. “It is those who will not be contented with ‘Let us pray, each in his own way, each in his own words,’ who are obstructing the tradition of acknowledging the importance of religion in American culture.”

Johnson disagreed with Joyner’s position, stating that the county’s “first come, first served” policy regarding prayer before meetings is inclusive, not exclusive and the ACLU is, in effect, trying to censor the expression of religion.

“No one is excluded and the record shows that,” Johnson said. “To the contrary, the commission wanted to do everything in its power and open it up to everyone and respect the religious diversity of the community it serves. The way they do that is to send identical invitation to every religious leader of every religion in the community.”

Parker said that the commission’s policy on prayer before meetings is exclusive and that a number of people who have asked to pray have been turned down.

“It’s the prayer that counts and in this case, it excludes religious minorities,” Parker said. “That’s exactly what the Establishment Clause is designed to prevent — for religious minorities not to feel like outsiders in their own community. It protects everybody’s freedom to practice their own religion instead of the government coming in and compelling a certain religious practice.”

Forsyth Commissioner Gloria Whisenhunt said she supports the county’s appeal of Judge Beaty’s ruling because no one should be told how to pray during a public meeting. Whisenhunt added that she’s not aware of anyone being turned away under the commission’s prayer policy.

Commissioner Walter Marshall said the county did not have a policy regarding prayer until Judge Beaty issued his ruling last year.

“The Alliance Defense Fund gave us a policy that we were supposed to sign off on,”

Marshall said. “It was not a policy created by our board.”

The Alliance Defense Fund is “a legal alliance defending the right to hear and speak the truth through strategy, training, funding, and direct litigation,” according to its website.

Marshall opposes the county’s appeal of Judge Beaty’s ruling.

“I don’t think we should promote a Christian agenda,” Marshall said. “I’m Christian and my faith can sustain me, so I don’t have any problem with recognizing other faiths and other religions.”

Khan said the three-judge panel of the 4th US Circuit Court

of Appeals generally issues rulings within 45 days of hearing oral arguments. After that, the losing side will have three options: Petition for a hearing by the full 4th US Circuit Court to hear the case; petition the Supreme Court to hear the case; or “throw in the towel,” Khan said.