ACRU

Federal Appeals Court: Saying “Jesus” During Public Prayer Is Unconstitutional

This column by ACRU Senior Legal Analyst Ken Klukowski was published July 30, 2011 on The Washington Examiner website.

As in most counties in America, the Board of Commissioners of Forsyth County, North Carolina, begins its public meetings with an invocation. These prayers are given by local religious leaders on a first-come, first-serve basis.

Given that 95 percent of local religious houses identify as Christian, it’s not surprising that many of the invocations include specifically Christian language, often closing the prayer in the name of “Jesus Christ” or “Jesus.”

Two non-Christians from the community with a population of approximately 350,000 sued, arguing that an invocation mentioning Jesus Christ during a public prayer violates the Establishment Clause of the Constitution.

Even though the pair acknowledged that the Supreme Court held public prayers–called “legislative prayers”–are constitutional in the 1983 case Marsh v. Chambers, the federal district court in North Carolina sided with the protestors.

In a stunning decision, the U.S. Court of Appeals for the 4th Circuit affirmed that judgment in a 2-to-1 decision, holding in the case Joyner v. Forsyth County that prayers unconstitutionally advance Christianity if references to Jesus are more than isolated, or if the content is otherwise too Christian for the court’s taste.

Writing for the majority, Judge Harvie Wilkinson – a respected appellate judge who was appointed by President Reagan – wrote that public prayers are for the purpose of welcoming and including the community to be involved in government. (That’s odd. I always thought it was to ask for God’s blessing.)

The predominance of Christian prayers violated Judge Wilkinson’s novel understanding, and so, joined by Barbara Keenan, who was appointed by President Obama, the court struck down the county’s longstanding practice, calling it “sectarian.”

Judge Paul Victor Niemeyer, a judicial conservative regarded as one of the smartest judges on the federal bench, wrote in a strong dissent: “Thus … 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 a civil nicety; … Most frightfully, it will require secular [authorities] to evaluate and parse particular religious prayers…”

This is yet another instance of a “heckler’s veto,” where one hypersensitive person in a crowd is offended, and makes the whole group conform to the heckler’s demands.

As I explain in my law review article, “In Whose Name We Pray,” published by Georgetown Journal of Law & Public Policy, not only does Marsh v. Chambers allow “sectarian” prayers (i.e. mentioning Jesus), it would violate the Establishment Clause for any government official–including any federal judge–to censor the content of anyone’s prayers.

Under our Constitution, every American can pray in accordance with the dictates of his conscience, and government never has a right to interfere with religious beliefs.

This is the latest in a string of disappointing lower court decisions on public prayer. It’s time for the Supreme Court to revisit this issue.