ADF: 4th Circuit’s decision on Forsyth County prayers out of step with other courts, American history

RICHMOND, Va. — In a 2–1 decision Friday, the U.S. Court of Appeals for the 4th Circuit upheld a district court’s ban on prayers by clergy that may mention a particular deity prior to public meetings in Forsyth County, N.C. Alliance Defense Fund attorneys representing the Forsyth County Board of Commissioners point out that the decision is in conflict with other federal court decisions and out of step with the history of invocations in America.

“America’s founders opened public meetings with prayer. There’s no reason that today’s public officials should be forced to censor the prayers of those invited to offer them simply because secularist groups don’t like people praying according to their own conscience,” said Mike Johnson, an ADF-allied attorney and founding dean of Louisiana College’s Pressler School of Law who argued before the 4th Circuit in May.  “The legal team will confer with the county about the process of appealing today’s decision.”

Judge Paul V. Niemeyer strongly dissented from the ruling, writing that “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; hardly accommodates the Supreme Court’s jurisprudence in Marsh v. Chambers…; and creates a circuit split [with the 11th Circuit]…. Most frightfully, it will require secular legislative and judicial bodies to evaluate and parse particular religious prayers under an array of criteria…. I respectfully submit that we must maintain a sacred respect of each religion, and when a group of citizens comes together, as does the Forsyth County Board of Commissioners, and manifests that sacred respect--allowing the prayers of each to be spoken in the religion’s own voice--we must be glad to let it be.”

Barbara Weller, David Gibbs, and local counsel Bryce D. Neier, three of more than 2,000 attorneys in the ADF alliance, are assisting with the case, Joyner v. Forsyth County. Other federal courts have upheld the ADF model invocation policy on which the county’s policy is based. The most recent example is a July 11 decision that upheld the invocation policy of Lancaster, Calif. Each of the four other federal courts to review similar invocation policies since 2009 has found them to be constitutional.

“Finding the county’s policy unconstitutional is odd not only in light of current cases, but also in light of the many prayers at public meetings throughout American history that have been uttered consistent with the prayer-giver’s conscience and without judicial ‘tests’ and government rules,” said ADF Senior Counsel Brett Harvey.

The prayer that opened the First Continental Congress on Sept. 7, 1774, said, in part, “O Lord our Heavenly Father, high and mighty King of kings, and Lord of lords, who dost from thy throne behold all the dwellers on earth and reignest with power supreme and uncontrolled over all the Kingdoms, Empires and Governments; look down in mercy, we beseech Thee, on these our American States…. All this we ask in the name and through the merits of Jesus Christ, Thy Son and our Savior. Amen.”

In March 2007, attorneys with the American Civil Liberties Union and Americans United for Separation of Church and State sued the Forsyth County Commission on behalf of three individuals because it “does not have a policy which discourages or prohibits those whom [the board] has invited to deliver prayers from including references to Jesus Christ, or any other sectarian deity, as part of their prayers.”

“In other words,” Harvey said, “the ACLU and AU are advocating censorship.”

ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith. Launched in 1994, ADF employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.

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