In Charlottesville, Virginia, Thomas Jefferson once sought to re-write the Gospels by stripping out all passages that did not meet his conception of who Jesus was. Contemplating this project, Jefferson wrote to a friend:
I should proceed to a view of the life, character, and doctrines of Jesus, who sensible of the incorrectness of his forbears’ idea of the Deity, and of morality, endeavored to bring them to the principles of a pure deism, and juster notions of God, to reform their moral doctrines to the standard of reason, justice, and philanthropy, and to inculcate the belief of a future state. This view would purposely omit the question of his divinity, and even his inspiration.
Shorn of embarrassing invocations of miracles and other phenomena that mystify an enlightened sensibility, the Jefferson Bible is also a pale shadow of the Gospels.
In Forsyth County, North Carolina, the County Board of Commissioners had a policy of inviting the religious leaders of congregations in the county to deliver a prayer before meetings. The County’s policy promised invited religious leaders that they would be “free to offer the invocation according to the dictates of your own conscience.” The invitation requested “only that the prayer opportunity not be exploited as an effort to convert others to the particular faith of the invocational speaker, nor to disparage any faith or belief different than that of the invocational speaker.”
The United States Court of Appeals for the Fourth Circuit has held that this policy, as implemented by the Board, is unconstitutional.
The problem is that too many of those who accepted the Board’s invitation invoked the name of Jesus in their prayers. One particularly problematic prayer went so far as to mention “the Cross of Calvary” and “the Virgin Birth,” along with an allusion to Romans 13. Two of those who were subjected to this particular prayer, and who were upset with others, filed a lawsuit in federal court. They won an injunction against the Board “continuing the Policy as it is now implemented.”
In an opinion authored by Judge Wilkinson (and joined by Judge Keenan), the Fourth Circuit affirmed. Judge Wilkinson held that the prayers offered pursuant to the policy failed to embody the “non-sectarian ideal” purportedly required by the Establishment Clause.
The opinion in Joyner v. Forsyth County commits the Fourth Circuit to “approving legislative prayer only when it is nonsectarian in both policy and practice.” To determine whether a particular prayer falls inside or outside the boundary dividing the sectarian from the nonsectarian, governmental bodies within the Fourth Circuit, and ultimately the Fourth Circuit itself, must now examine prayers to ensure that the signals they send are welcoming. Within the Fourth Circuit, “legislative prayer must strive to be nondenominational so long as that is reasonably possible.”
Judge Niemeyer’s dissent identifies several problems with the Fourth Circuit’s approach, such as its requirement to supervise the content of prayers for conformity to an approved blandness and, on the flipside, its prohibition against “allowing the prayers of each [religion] to be spoken in the religion’s own language.”
Looking forward, the Fourth Circuit’s decision appears to be a strong candidate for Supreme Court review. The Fourth Circuit’s holding conflicts with the Eleventh Circuit’s decision in Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir. 2008). In that case, the Eleventh Circuit upheld against Establishment Clause challenge “the practice of two county commissions that allow volunteer leaders of different religions, on a rotating basis, to offer invocations with a variety of religious expressions.” The Fourth Circuit’s nonsectarianism requirement for legislative prayer conflicts directly with the Eleventh Circuit’s rejection of the claim that Supreme Court precedent allows only nonsectarian prayers. This argument, according to the Eleventh Circuit, runs “contrary to the command of Marsh [v. Chambers, 463 U.S. 783 (1983)], that courts are not to evaluate the content of the prayers absent evidence of exploitation.”
It will be interesting to see how this plays out. While en banc review by the Fourth Circuit is theoretically available, it is difficult to count a majority of judges who would rally to vacate Judge Wilkinson’s opinion. At the Supreme Court, however, Forsyth County has a chance to win. To do so, it will be necessary to persuade the Justices that the “take-all-comers” (unless out to convert) policy means what it says. That hardly seems like an impossible task.
Notwithstanding its ultimate requirement of nonsectarianism, the Fourth Circuit’s ruling also implies that there may never have been a constitutional violation if only the pluralism promised by the policy were more evident. The perverse consequence of the court’s ruling, however, is to prevent this pluralism from becoming manifest. It is reasonable to conceive of a majority of the Supreme Court finding that consequence to be an indication that the Fourth Circuit’s reading of the Establishment Clause to bring about such a consequence is mistaken.