Recommendation Issued In NC Prayer Case

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Recommendation Issued In NC Prayer Case

Special Report - November 12, 2009
In a recommendation to the federal district court judge in a pending case challenging Forsyth County’s public prayer policy, a federal magistrate has said the policy violates the U.S. Constitution, in part, because all of the prayers given by clergy members before Board of Commission meetings invoked the name of “Jesus.” Magistrate Judge Trevor Sharp issued his recommendation, which is not the final decision in the case, on November 9. In it, he recommended that the district judge order the county to change or end its prayer policy, which allows various clergy members from the community to offer sectarian prayers prior to public meetings. It is important to note that the official court ruling in the case will be made by District Judge James A. Beaty, Jr., who will decide whether to accept, reject, or modify the Magistrate’s recommendation. According to the rules of the district court, Forsyth County now has until November 27, 2009, to submit its legal objections to Judge Sharp’s recommendations.

“The Magistrate’s ruling is a setback, but it is far from being the end of the battle,” said Mike Johnson, Senior Legal Counsel for the Alliance Defense Fund (ADF), who is leading the defense team for Forsyth County in the case. “We want people in Forsyth County to stay encouraged. We are winning this battle everywhere else this issue comes up around the country, and we are confident that we will win in North Carolina, but we have to stay in the fight.”

As we reported previously, the American Civil Liberties Union (ACLU) is challenging Forsyth County’s prayer policy on behalf of two Winston-Salem residents, who allege that the policy is unconstitutional because it allows clergy members to pray to specific deities, such as in the name of Jesus. The ACLU filed the lawsuit in the U.S. District Court for the Middle District of North Carolina in March 2007, and the Forsyth County Board of Commissioners voted 4 to 3 in April 2007 to defend the policy with the help of Alliance Defense Fund. The lawsuit is part of an ongoing campaign by the ACLU-NC and its allies to pressure local governments to change their public prayer policies.
In his 20-page recommendation, Judge Sharp concluded that the invocation prayers given at the Forsyth County commission meetings “are government speech.” He noted that none of the 33 prayers given by clergy members at the public meetings between May 29, 2007 and December 15, 2008 “invoke a deity associated with any specific faith other than Christianity.” Judge Sharpe wrote, “The undisputed record shows that the prayers delivered at the outset of the Board meetings…refer to Jesus, Jesus Christ, or Savior with overwhelming frequency…These prayers as a whole cannot be considered nonsectarian, civil prayer. They display a preference for Christianity over other religions by the government.”

Most of Judge Sharp’s recommendation centered on the sectarian content of the prayers given at the Board of Commission meetings, and not on the county prayer policy itself. In fact, he even acknowledged that “the Defendant’s policy does many things right. By way of example…the Board’s selection process for invocation speakers strives to include a wide variety of speakers from diverse religious faiths.”

According to ADF, Forsyth County’s public prayer policy is constitutional, as the U.S. Supreme Court has previously ruled in Marsh v. Chambers that “The content of the prayer is not of concern to judges, where, as here, 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. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.”

Johnson added, “The practice of allowing uncensored prayers before government meetings dates back to the Founders’ era. There is no reason to silence this cherished American tradition now.”