Posts Tagged ‘legislative prayer’

That is one of the questions that came to mind in reading today’s Third Circuit decision in Doe v. Indian River School District. The Third Circuit holds unconstitutional the Indian River School District’s policy of allowing Board members to open Board meetings (often attended by students) with a prayer. In practice, this policy resulted in almost exclusively Christian prayers.

The decision has some important factual differences, but it is closely related to a circuit split between the Fourth and Eleventh Circuits that I previously mentioned.

Constitutional analysis aside for the moment, a question raised by these cases is what is meant by “sectarian” and “non-sectarian.” The opinions all seem to use “sectarian” to denote a broad religious tradition, such as Christianity, as compared with another broad religious tradition such as Islam, Judaism, and so on. To invoke Jesus’ name is to render the prayer “sectarian.” Outside of the law, “sectarian” often has a narrower meaning. When used in this narrower sense, it denotes a particular group within a broad religious tradition as compared to another group within that tradition (such as the Old Order Amish within Christianity or the Wahabi within Islam). The broader usage in the caselaw appears to follow from the idea of “nonsectarian” as referring to some sort of ceremonial deist approach to prayer, or prayer that (as Chief Justice Burger put it in Marsh v. Chambers) is in “the Judeo-Christian tradition.” With “nonsectarian” thus understood, “sectarian” is shorthand for “not nonsectarian.”

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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.


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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.


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