When it comes to interpreting the Constitution on the United States Court of Appeals for the Fourth Circuit, Judge Wilkinson and Judge Niemeyer do not often engage in such sharply divergent analyses as are apparent in today’s opinions in Joyner v. Forsyth County. At issue is the constitutionality under the Establishment Clause of the prayer policy of the Forsyth (NC) County Board of Commissioners, as implemented during 2007 and 2008. In an opinion authored by Judge Wilkinson and joined by Judge Keenan, the Fourth Circuit finds that Forsyth County has violated the Establishment Clause. Judge Niemeyer dissents.
Snippets from the majority opinion after the jump. Portions of the dissent and issue analysis in later posts.
[B]oth the Supreme Court and this circuit have been careful to place clear boundaries on invocations. That is because prayer in governmental settings carries risks. The proximity of prayer to official government business can create an environment in which the government prefers — or appears to prefer — particular sects or creeds at the expense of others. Such preferences violate “[t]he clearest command of the Establishment Clause”: that “one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). After all, “[w]hatever else the Establishment Clause may mean . . . it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed.” Allegheny, 492 U.S. at 605. More broadly, while legislative prayer has the capacity to solemnize the weighty task of governance and encourage ecumenism among its participants, it also has the potential to generate sectarian strife. Such conflict rends communities and does violence to the pluralistic and inclusive values that are a defining feature of American public life.
The cases thus seek to minimize these risks by requiring legislative prayers to embrace a non-sectarian ideal. That ideal is simply this: that those of different creeds are in the end kindred spirits, united by a respect paid higher providence and by a belief in the importance of religious faith.
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The case law thus sets out clear boundaries. As amicus Baptist Joint Committee for Religious Liberty puts it, “this [c]ourt’s legislative prayer decisions have recognized that the exception created by Marsh is limited to the sort of nonsectarian legislative prayer that solemnizes the proceedings of legislative bodies without advancing or disparaging a particular faith.” Amicus Br. Baptist Joint Comm. for Religious Liberty 13. Put differently, legislative prayer must strive to be nondenominational so long as that is reasonably possible — it should send a signal of welcome rather than exclusion. It should not reject the tenets of other faiths in favor of just one. Infrequent references to specific deities, standing alone, do not suffice to make out a constitutional case. But legislative prayers that go further — prayers in a particular venue that repeatedly suggest the government has put its weight behind a particular faith — transgress the boundaries of the Establishment Clause. Faith is as deeply important as it is deeply personal, and the government should not appear to suggest that some faiths have it wrong and others got it right.
Taken together, the principles set forth by the Supreme Court in Marsh and Allegheny and by this circuit in Wynne and Simpson establish that the Board’s policy, as implemented, cannot withstand scrutiny. The December 17, 2007prayer — the prayer that led to the plaintiffs’ amended complaint — clearly crossed the constitutional line. In Wynne, we concluded that the town council’s prayers “clearly ‘advance[d]’ one faith, Christianity, in preference to others, in a manner decidedly inconsistent with Marsh,” Wynne, 376F.3d at 301, because they ended with a solitary reference to Jesus Christ. The prayer here went further. It discussed specific tenets of the Christian religion, from the “Cross of Calvary” to the “Virgin Birth” to the “Gospel of the Lord Jesus Christ.” The December 17 invocation thus “engage[d], as part of public business and for the citizenry as a whole, in prayers that contain[ed] explicit references to a deity in whose divinity only those of one faith believe.” Wynne, 376 F.3d at 301.
Nor was the December 17 prayer the exception, rather than the rule, as our friend in dissent suggests. Post at 39. December 17 was of course the day Joyner and Blackmon chose to attend a Board meeting and heard the sectarian opening prayer. But the day was hardly unusual. As the magistrate judge found, “[t]he undisputed record shows that the prayers delivered at the outset of Board meetings from May 29, 2007through December 15, 2008 referred to Jesus, Jesus Christ, Christ, or Savior with overwhelming frequency.” Almost four-fifths of the prayers contained such references. The prayers closed — like the prayers in Wynne — with invocations to “the gracious name of the Lord Jesus Christ,” with references to “the merits of Jesus Christ, Thy Son and our Savior,” and with reminders that the prayers were “[i]n the blessed name of Jesus.” See Wynne, 376 F.3d at 294 (prayers closed with “In Christ’s name we pray”). The prayers before the policy likewise featured a substantial number of sectarian references.