Judge Niemeyer’s dissent in Joyner v. Forsyth County argues that the Board’s prayer policy does not violate the Establishment Clause because the Board allows “all and any religious leaders to deliver invocational prayers of their own composition before Board meetings and has sought proactively to be inclusive.”
The principal division between the majority and the dissent is over whether including “sectarian references” in prayers creates an Establishment Clause problem. Judge Niemeyer argues that the majority’s position “entangles the legislative bodies in determining what form of prayer is sectarian or offensive to given members of the public.” He asserts that “we should not constitutionally mandate that any government body supervise the content of prayer given by private individuals.” Moreover, this supervision will be difficult to carry out (and for courts to supervise), because “there is no clear definition of what constitutes a ‘sectarian’ prayer.” Under the majority’s approach, a prayer that invokes the name of Jesus is sectarian, but “Lord of [l]ords,” and “King of [k]ings” are not — even though, Judge Niemeyer writes, “those phrases refer to Jesus in the New Testament.”
Judge Niemeyer’s conclusion is worth quoting in full:
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. The ruling today intermeddles most subjectively without a religiously sensitive or constitutionally compelled standard. This surely cannot be a law for mutual accommodation, and it surely is not required by the Establishment Clause.