Forsyth County commissioners vote to appeal prayer ruling

by Keith Barber

Monday’s meeting of the Forsyth County Commission drew an estimated 800 citizens. After a 30-minute public hearing, the commissioners voted to appeal a federal judge’s ruling that sectarian prayer at commissioners meetings violates the First Amendment. (photo by Keith T. Barber)

Forsyth County commissioners vote to appeal prayer ruling

The larger-than-capacity crowd packed inside the Forsyth County Government Center Monday night cheered when it heard the decision of the Board of Commissioners to appeal the Jan. 28 ruling of US District Court Judge James Beaty that the use of sectarian prayer at commissioners meetings violates the First Amendment.

Board chairman Dave Plyler voted with commissioners Debra Conrad, Gloria Whisenhunt and Richard Linville in favor of the resolution to retain the Alliance Defense Fund as the county’s attorney to appeal the case to the Fourth Circuit Court of Appeals. Commissioners Ted Kaplan, Beaufort Bailey and Walter Marshall voted against the measure.

The commissioners also passed a resolution to accept up to $300,000 from the North Carolina Partnership for Religious Liberty (NCPRL) to pay any attorneys’ fees, damages or assessments it may incur in its legal battle against the suit brought by the American Civil Liberties Union (ACLU). The ACLU brought the suit nearly three years ago on behalf of two Forsyth County residents, Joyner and Constance Lynn Blackmon. Joyner and Blackmon objected to invocations prior to commissioners meetings as a violation of the constitutional rights of all county residents. The ACLU won a decision by US Magistrate Judge Trevor Sharp last November. Forsyth County filed an objection to Sharp’s decision where he ruled that prayer at commissioners meetings are sectarian, and therefore, unconstitutional. Judge Beaty’s ruling came as a response to Forsyth County’s objection.

The ACLU has now submitted a request for attorney’s fees, costs and damages with the US District court in the amount of $127,600.

The county’s agreement with the NCPRL clearly states that if the county is assessed fees, costs and damages by the US District Court or by the Fourth Circuit Court of Appeals beyond the total amount of funds guaranteed, the nonprofit group “shall in no way be responsible for any further financial obligation to the county.”

Plyler had previously stated he would vote in favor of appealing Judge Beaty’s ruling only if he was given a written guarantee that no taxpayer dollars would be used in the process. When asked why he changed his mind, Plyler said the agreement was “the best compromise we could come up with.”

“I had to reach a compromise,” he said. “Unfortunately, that’s what politics is all about.”

In lieu of a written guarantee, Steve Corts, chairman of the NC Partnership for Religious Liberty, presented Plyler with a letter from BB&T regarding account balances held in escrow for the “Forsyth County Prayer Initiative.”

The letter reveals three accounts held in escrow with fund balances totaling a little more than $300,000.

“It wasn’t a matter of the Partnership simply saying we’ve got pledges,” Corts said. “It was a matter of the Partnership saying, ‘We have the dollars.’” Corts said Plyler also stipulated that the NCPRL have “no direct say” in the court proceedings, and the nonprofit’s leadership agreed to the terms.

“The issue for us fundamentally is religious liberty — religious liberty for all persons of all faiths,” Corts said. “I’m pleased; I’m excited. I’m glad for every Hindu, Muslim, Buddhist, Christian child in Forsyth County. There is hope now that they can enjoy the religious liberty I’ve enjoyed for 50 years.”

The commissioners’ vote followed a 30-minute public hearing on the issue. Ten citizens who signed up to speak were selected at random to share their thoughts on the issue. Mike Caton, a Pfafftown resident, encouraged the commissioners to appeal the judge’s ruling.

“Our rights are being eroded and we can clearly see it,” Caton said. “I’m asking you to stand and let’s fight this thing.”

Mark Baker, a member of the Tobaccoville Village Council, said he supported the commissioners going forward with an appeal.

“I encourage you to stand up for free speech,” Baker said. “The eyes of our young people are on you tonight and are looking for you to do the right thing. I hope you don’t disappoint them.”

Charles Wilson, a Southern Baptist minister and member of the ACLU, was one of two speakers who discouraged the commissioners from proceeding with an appeal.

“One Baptist distinctive was the separation of church and state,” Wilson said. “I still believe that. Many of my brothers and sisters do not believe that.”

David Hughes, pastor of the First Baptist Church in Winston-Salem, said the issue over prayer at commissioners meetings has created a wedge in the faith community.

“I do think it’s divided the Christian community, and it’s divided the Baptist Christian community,” Hughes said. “I think historically Baptists have been heavily tilted toward the side of separation of church and state. And yet there are some Baptists that are leading the way on this campaign here.”

Hughes noted it’s not unusual for Baptists to disagree. Bill Leonard, himself a Baptist and founding dean of the Wake Forest School of Divinity, said the issue comes down to a basic misunderstanding of the nature of prayer and the nature of religious liberty, which is why Leonard advocates a moment of silence at commissioners meetings as a viable solution that could satisfy those on both sides of the issue.

“This is really about religious liberty and making sure everybody’s voice gets heard at government meetings,” Leonard said. “When the government asks you to pray, you’re already up a creek. When someone prays at a government meeting, someone is silenced.”

Leonard characterized his position as “radically separatist” on the issue but asserted that a moment of silence at government fits better with the personal nature of prayer.

“Silence lets everybody say whatever they want or not say anything,” Leonard said.

Hughes said he’s prayed before county commissioner meetings and with the Winston-Salem City Council.

“For me to say it’s wrong to pray would by hypocritical,” Hughes said. “I feel comfortable with the standard that all people will be allowed to pray in their tradition, but I appreciate the sensitivity, because 95 percent of the prayers are offered by a Christian majority and are ended in Jesus’ name.”

An inability to accept that we live in a pluralistic society lies at the heart of the problem, Leonard said.

“This effort to make prayer sectarian at government meetings demeans prayer itself,” Leonard said. “God doesn’t care if you have government permission or not. God wants to know if you want to talk to Him or to the government.”

Rabbi Josh Brown of Temple Emanuel in Winston-Salem said if sectarian prayer is allowed at commissioners meetings, it infringes upon the Jewish community’s sense of religious freedom.

“Sectarian prayer can allow for the majority to overshadow any minority religious groups,” Brown said. “It’s like being at a football game and 98 percent of the people there pray to Jesus and two percent don’t. That can make us in a Jewish context feel very unwelcome.”

James Dunn, a resident professor of Christianity and Public Policy at Wake Forest, recalled receiving a phone call from former President Bill Clinton to illustrate his firm belief in the separation of church and state. Dunn, the former executive director of the Baptist Joint Committee, said Clinton was about to announce his candidacy for president and asked Dunn how he should close a prayer.

“I gave him a few phrases to use but I was uncomfortable even doing that,” Dunn said.

Dunn, who teaches a class on separation of church and state at Wake Forest, said the parading of one’s faith is not “a good use of your vocal chords,” and characterized praying at government meetings as a ceremonial rite.

“I don’t think it’s a winsome use of our Christian faith to make a public testimony through a constricted, watered-down ceremonial religion,” Dunn said. “I don’t think ceremonial religion brings out the best in either side. I think it brings out the worst. The talk of Jesus is very sacred to me, and I don’t think we ought to force the name of Jesus on an unwitting and unwilling audience.”

In the Christian tradition, actions speak more than words when it comes to one’s personal faith, Hughes said.

“Sometimes simple, concrete actions say way more than words or lawsuits or anything else,” Hughes said. “From a strategic standpoint, I don’t think it makes sense for the Christian community to pursue this in course. When push comes to shove, I would not be in favor of spending the money and the considerable time and energy to fight this in court.”

Mike Johnson, a lawyer for the Alliance Defense Fund, said it could be a year before a judge hears Forsyth County’s appeal, but the county has a strong case. Johnson cited the 1983 Supreme Court decision in Marsh v. Chambers when the court ruled that the content of prayer at government meetings is not the concern of judges as long as the prayer opportunity has not been exploited to advance one religion or disparage another faith or belief.

The tradition of the Forsyth County Board of Commissioners is to send out invitations to local clergy and allow them to give the invocations at board meetings on a first-come, first-served basis, Johnson said, and there is no evidence that the board has ever exploited the prayer opportunity.

“That’s the legal test and that’s the test that the district court overlooked, so I think the Supreme Court ultimately would affirm that that’s the right legal analysis, so we go forward on that basis,” he said.

After a majority of citizens in attendance cheered the commissioners’ vote Monday night, Plyler quickly reminded the audience that the county’s legal battle looks to be a long struggle. Contrary to popular belief, Plyler said, the county’s appeal will not bring back sectarian prayer until a judge rules in their favor. And that could take as long as five years, Plyler said.