Appeals Court Upholds Sectarian Prayers at Public Meetings

Special Report - October 31, 2008
A three-judge panel of the U.S. Circuit Court of Appeals for the 11th Circuit has upheld the practice of allowing local clergy members to offer public prayers that invoke the name of Jesus or other religious deities at government meetings in Cobb County, Georgia. In the 2 to 1 decision on October 28, the federal appeals court rejected a claim by the American Civil Liberties Union (ACLU) that the “sectarian” prayers are unconstitutional and should be censored. The case, Pelphrey v. Cobb County, began in August 2005, when the ACLU filed a lawsuit against the county on behalf of seven residents, who objected to the county’s practice of allowing clergy from different religious traditions to open commission meetings with prayers that often included references to Jesus or other deities.

In the majority opinion affirming a lower court ruling, Judge William Pryor wrote: “The taxpayers argue that the Establishment Clause permits only nonsectarian prayers for the meetings of the commissions, but we disagree. Marsh v. Chambers makes clear that ‘[t]he content of the prayer is not of concern to judges where . . . there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.’ The district court applied this standard, found that the practice of the County Commission had not been exploitive, and refused to parse the content of the prayers.” Judge Pryor concluded, “Whether invocations of ‘Lord of Lords’ or ‘the God of Abraham, Isaac, and Mohammed’ are ‘sectarian’ is best left to theologians, not courts of law.”

This summer, the U.S. Court of Appeals for the Fourth Circuit—whose jurisdiction includes North Carolina—reached the opposite conclusion over the issue of sectarian prayers at public meetings. The appeals court ruled that the Fredericksburg, Virginia City Council may prohibit its members from opening their meetings with a prayer in Jesus’ name. A City Council member, the Reverend Hashmel Turner, brought the suit when he was excluded from the prayer rotation because he intended to pray “in Jesus’ name.” Rev. Turner challenged a non-sectarian prayer policy adopted by the City Council in 2005 in response to threats from the ACLU.

North Carolina is facing a similar challenge to sectarian prayers at public meetings from the ALCU and its allies. In March 2007, the ACLU-NC and the Winston-Salem chapter of Americans United for the Separation of Church and State filed a lawsuit against Forsyth County, alleging that the county’s policy of allowing various clergy members from the community to offer sectarian prayers before public meetings is unconstitutional because it allows clergy members to pray to specific deities. The Alliance Defense Fund (ADF) is representing Forsyth County in the case, which is Joyner v. Forsyth County. In May 2007, the Forsyth County Board of Commissioners approved a model prayer policy drafted by ADF that allows clergy from the community to offer sectarian invocations at public meetings on a rotating basis. The case is still pending in federal court.

“Public prayers offered by private individuals who are invited to give the invocation do not need to be censored or prohibited, and to do so would be a violation of the Free Exercise clause of the U.S. Constitution,” said Tami Fitzgerald, legal counsel for the North Carolina Family Policy Council. “This week’s decision by the 11th Circuit to uphold the practice of allowing sectarian prayers before public meetings is a victory for religious freedom. However, since there is disagreement between the 4th Circuit and 11th Circuit on this issue, the U.S. Supreme Court is likely to take up a public prayer case to settle the law in this area.”

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