Forsyth County Prayer Case: Supreme Court to Decide if Council Members Can Pray Before Discussing Zoning Laws?

Posted on January 9, 2012

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The right-wing battle to shove prayer down the throats of everyone and anyone wherever and whenever continues as the Alliance Defense Fund (ADF) and its $34 million a year budget lends its perpetually praying hands to North Carolina’s Forsyth County, in a case involving praying before council meetings that the U.S. Supreme Court will soon decide if it wants to hear.

The case has been in and out of court since December of 2007, when two Forsyth County residents did not like opening city council board meetings with Christian prayers. According to the Beaufort Observer, the prayers were overtly Christian and ended with phrases like “For we do make this prayer in Your Son Jesus’ name, Amen,” and included several references to Christian imagery, such as the “Virgin Birth” and the “Gospel of the Lord Jesus Christ.”

Janet Joyner, one of the Forsyth County residents who participated in the lawsuit against prayer at board meetings, said she was not against prayer – she just thought it has no place at a council meeting where people come to discuss very un-spiritual topics like zoning laws.

“I just think that it’s important in our nation to stick to the policies and forms that have served us so well in the past an we keep church and state separate,” Joyner said.

In 2010, with the help of the ACLU, Joyner and her fellow plaintiffs won their case in federal court for the middle district of North Carolina, in which the court said that the use of sectarian prayers before government meetings violated the Establishment Clause of the First Amendment to the United States Constitution.

Forsyth County appealed the ruling in the 4th circuit court of appeals – but lost again.

In the 2-1 decision, Judge J. Harvie Wilkinson, a Republican appointed to the bench by right-wing favorite Ronald Reagan, wrote: “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.”

In the decision, the court said that prayer need not be eliminated – it just could not favor any specific belief or religion. In other words, stop with the praying stuff. But if you absolutely have to pray to a higher power before discussing pressing issues like holiday landfill operating hours, keep the Jesus and Muhammad talk to yourself.

However, the case would not end there because, as mentioned above, the ADF has more money than God, so they kept up the fight, filing an appeal after the decision, arguing that it unconstitutionally prohibits religious speech and “imposes an unwieldy requirement that government police the language of prayers.”

The appeal also cited Judge Paul Niemayer’s dissenting opinion in the 4th Circuit decision, in which he said, “Such a decision treats prayer agnostically [and] reduces it to a civil nicety.”

After citing past court decisions in which similar cases were decided differently, Niemayer warned that the 4th Circuit’s decision would “frightfully” open the way to “require secular legislative and judicial bodies to evaluate and parse particular religious prayers under an array of criteria identified by the majority.”

Dirty South News spoke to the Brett Harvey, the senior counsel at ADF to ask him about the case. Harvey said that the 4th circuit decision – that too many references to a specific deity makes the prayer sectarian and therefore unconstitutional. However, “in Pelphrey v. Cobb County, the 11th circuit in Goergia looked at the same policy and ruled differently. They ruled that prayer at council meetings does not obligate people to pray a certain way,” Harvey said.

According to a summary of the Pelphrey decision from the Americans United website, which was involved in the case:

 “[The court] reasoned that the Establishment Clause permits any legislative prayer, so long as the prayer opportunity has not been exploited to advance or disparage religion, and hence that the diversity of religions represented in the prayers and the lack of evidence of an impermissible motive in the commissions’ current method of selecting prayergivers were sufficient to render the prayers constitutional.”

Harvey said that this “circuit split” – lawyer talk for when two different districts have a different opinion about a similar case – gives him confidence the Supreme Court will hear the case.

This is a matter the supreme court has not looked at in over three decades, so it’s ripe for review, clear circuit split, so we certainly hope the supreme court will accept review,” Harvey told DSN.

He added: “The very notion of prayer allows an individual to interact and pray to a divine being in a way that’s consistent with the dictates of their own conscience. And the government shouldn’t tell people how to do that.”

Fair enough. The government shouldn’t tell you how to pray. But why do people need to pray publicly at government meetings? Why does a city council meeting need to open with a prayer? What compels a religious person to broadcast his or her religious beliefs at a city council meeting? And why can’t religious people see that people who don’t share their beliefs feel uncomfortable?

Although the 11th circuit decision makes sense (if you accept that public praying is not a form of advancement and therefore does not violate the Establishment Clause), why can’t people just keep it to themselves?

Well, first of all, the Supreme Court has already decided that you can pray at government meetings. In the 1983 case, Marsh v. Chambers, the Supreme Court decided that not only can government meetings open with prayer, but the person giving the prayer can be paid out of public funds. According to Oyez, the court did a historical analysis, found that prayers at government meetings go back all the way to the Founding Fathers, and that since everyone in America is Christian (something non-Christian Americans should just deal with), it doesn’t make sense to make public prayer at government meetings or the paying for them from public monies unconstitutional.

“It is,” wrote Justice Warren E. Burger, “simply a tolerable acknowledgment of beliefs widely held among the people of this country.”

The other reason that people feel compelled to pray is because they really do feel that city council decisions cannot be made without divine guidance.

“Acknowledging or asking for divine guidance to make wise decisions that affect the community at large has been happening for centuries,” Harvey said. “And the reason the practice develops is it serves multiple purposes. Some of which are independent of the religious aspects. It solemnizes the event, it gets people focused. It communicates to people that we’re going to talk about important issues that you need to pay attention to. It has a variety of benefits. Not the least of which is that presumably the people that are praying believe there is a God out there who is interested in the affairs of men and is willing to provide wisdom and insight.”

And yes, that includes just regular-old city council decisions…like holiday landfill operating hours.

“The notion that the city council, by virtue of the fact that they’re elected officials, are able to make all decisions with perfect wisdom on their own is contrary to the heritage of this country,” Harvey said.

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