On Friday, the Supreme Court denied certiorari in Joyner v. Forsyth County, a 4th Circuit Court decision that prevents government bodies from beginning meetings with sectarian prayers. 653 F.3d 341 (4th Cir. 2011). The 4th Circuit Court based its decision on the fact that the vast majority of prayers by Forsyth County Commissioners were explicitly Christian in nature. Such a practice showed a clear preference for Christianity over other religions and was therefore an endorsement of religion in violation of the Establishment Clause.
The County’s goal was to“acknowledge and express the Board's respect for the diversity of religious denominations and faiths represented and practiced among the citizens of Forsyth County.” Id. at 344. The appeals court noted, “despite that language, the prayers repeatedly continued to reference specific tenets of Christianity. These were not isolated occurrences: between May 29, 2007 and Dec. 15, 2008, almost four-fifths of the prayers referred to ‘Jesus,’ ‘Jesus Christ,’ ‘Christ,’ or ‘Savior.’ ” Id.
The action to let stand the strong appeals court ruling places an important caveat on the Supreme Court’s 1983 decision, Marsh v. Chambers, 463 U.S. 783 (1983), which upheld legislative prayer under narrow circumstances. If prayers are predominately sectarian and that sectarianism offends just one person the prayers can be held unconstitutional, according to the 4th Circuit Court decision:
“[the Board's policy] resulted in sectarian invocations meeting after meeting that advanced Christianity and that made at least two citizens feel uncomfortable, unwelcome, and unwilling to participate in the public affairs of Forsyth County. To be sure, citizens in a robust democracy should expect to hear all manner of things that they do not like. But the First Amendment teaches that religious faith stands on a different footing from other forms of speech and observance. Because religious belief is so intimate and so central to our being, government advancement and effective endorsement of one faith carries a particular sting for citizens who hold devoutly to another. This is precisely the opposite of what legislative invocations should bring about. In other words, whatever the Board's intentions, its policy, as implemented, has led to exactly the kind of ‘divisiveness the Establishment Clause seeks rightly to avoid.’ ” Id. at 354-355.
The 4th Circuit Court came to similar conclusions in addressing legislative prayer in two previous cases: Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004) and Simpson v. Chesterfield County Board of Supervisors, 404 F.3d 276 (4th Cir. 2005). With this most recent decision which will not be overturned, the 4th Circuit Court of Appeals has solidified an important limit on legislative prayer.
In its conclusion, the court wrote, “George Washington once observed that “[r]eligious controversies are always productive of more acrimony and irreconcilable hatreds than those which spring from any other cause.” Letter from George Washington to Edward Newenham (June 22, 1792). As our nation becomes more diverse, so also will our faiths. To plant sectarian prayers at the heart of local government is a prescription for religious discord.” Id at 355. We might add, as our nation becomes more diverse, we become increasingly faithless. Nonbelievers have as much right to feel welcome as full participants at government meetings as believing Americans. Concerns about government prayer flood FFRF and are among the leading state/church complaints received by us. We can all take comfort and satisfaction that such an important constraint is still in place, and work to encourage other circuits to follow the 4th Circuit Court's lead.