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Precedent and the Joyner Decision: A Distinction Without Merit

Ayesha Khan, Legal Director for Americans United for Separation of Church and State, argues that the recent Fourth Circuit ruling on the constitutionality of prayers conducted at the opening of a legislative session is consistent with Fourth Circuit and Supreme Court precedent, despite the arguments of a previous JURIST contributor...

Recently, Rutherford Institute President John Whitehead wrote an article for JURIST regarding Joyner v. Forsyth County, a ruling from the US Court of Appeals for the Fourth Circuit striking down a North Carolina county council's practice of having clergy from the community open council meetings with explicitly Christian prayers. Whitehead's conclusion—that the decision conflicts with precedents of both the US Supreme Court and the Fourth Circuit—rests on a misreading of the case law and warrants clarification.

Whitehead began by discussing the Supreme Court's decision in Marsh v. Chambers, which upheld a state legislature's practice of having a paid chaplain open its sessions with prayer. He correctly noted that the Court held that prayers are permissible so long as they do not "proselytize or advance any one faith or belief." He omitted, however, the important fact that the prayers at issue in that case withstood this test because the chaplain had "removed all references to Christ" over three years earlier and had since limited himself to delivering inclusive, "nonsectarian" prayers containing elements of the "American Civil Religion," rather than concepts or deities particular to any single faith.

Whitehead also did not to mention a more recent Supreme Court decision, Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter, in which the Court reiterated that the ecumenism of the chaplain's prayers was central to the holding in Marsh. The Court in Allegheny explained that "not even the 'unique history' of legislative prayer can justify contemporary legislative prayers that have the effect of affiliating government with any one specific faith or belief. The legislative prayers involved in Marsh did not violate this principle because the particular chaplain had 'removed all references to Christ.'" In contrast, during the nineteen months that elapsed after enactment of the policy at issue in Joyner, almost 80 percent of the delivered prayers referred to "Jesus," "Jesus Christ," "Christ," or "Savior." Many of the prayers did not stop there: several included discussions about specific tenets of the Christian religion, including the crucifixion and the virgin birth. To make matters worse, not a single non-Christian appeared as a prayer-giver. Given these facts, the Fourth Circuit was eminently correct in concluding that the county's practice advanced a single religion, and thus ran afoul of Supreme Court precedent.

Whitehead's discussion of Fourth Circuit case law also failed to mention several important points. He acknowledged that the circuit held in Wynne v. Town of Great Falls that consistently Christian references are impermissible, but he sought to distinguish the ruling on the ground that council members, rather than outside clergy, presented the prayers at issue in Wynne. He failed to mention, however, that the Fourth Circuit has rejected this very distinction, holding in Simpson v. Chesterfield County Board of Supervisors that prayers presented before legislative bodies constitute governmental speech subject to the strictures of the Establishment Clause, whether they are delivered by outside clergy or by council members. This conclusion, which has been echoed by the other circuits, makes eminent sense: outside clergy, no less than council members, have access to the podium only because the legislative body has set aside time for prayer and has invited the prayer-giver to deliver that prayer.

Whitehead next stated that the Fourth Circuit's Simpson decision upheld a practice under which "many clerics invoked sectarian terms, including 'Lord God,' 'our creator,' and 'Jesus,' among others." Again, the distortion rests in Whitehead's omission: the explicitly Christian references at issue in Simpson were "occasional or incidental," and the clerics who delivered the prayers reflected a wide variety of religious traditions, including Judaism and Islam. In contrast, in Forsyth County the Christian references were ubiquitous and the post-enactment roster of prayer-givers consisted of exclusively Christian clergy. The Joyner panel was also careful to note, consistently with Simpson, that "[i]nfrequent references to specific deities, standing alone, do not suffice to make out a constitutional case." The Joyner ruling is thus hardly irreconcilable with Supreme Court or Fourth Circuit jurisprudence; indeed, it represents a faithful application of the decisions of both courts.

Whitehead spends considerable time describing the terms of Forsyth County's "neutral" written policy and emphasizing the policy's application to "religious leaders of all faiths"—and he claims that the court of appeals "rendered" this neutral policy unconstitutional. In fact, the court declined to strike down Forsyth County's written policy. Rather, the court struck down the county's practice, which, as explained above, involved exclusively Christian clergy delivering explicitly Christian prayers the overwhelming majority of the time. In so doing, the court rightly declined to let formalism carry the day.

Nor is there merit to Whitehead's criticism that "if Joyner stands, government officials will be forced to review and censor invocation remarks to avoid violations of the First Amendment." Invoking the specter of censorship may cast the decision in an ominous light, but the accusation is grossly out of place in this context. The prayers at issue are not private communications subject to the prohibition on governmental censorship; they are the speech of the government itself—delivered by government agents, from a government podium, as an official part of a government event. It is not the Joyner decision, but the Establishment Clause itself, which calls for "censorship" in this context. That clause prevents the government from presenting or sponsoring religious messages that prefer some faiths over others, and obligates government—in all settings, not just at the legislative podium—to "censor" its remarks to comply with that obligation. Such "censorship" reflects the best of our constitutional traditions.

Further, as a practical matter, nothing in the panel's decision calls for the parsing of content that Whitehead fears. The Joyner court spoke favorably of a regime, like the one in Simpson, where clergy were simply asked, before their presentation, not to mention specific deities. In contrast, the letter sent to prayer-givers in Forsyth County explicitly instructed that they were free to "offer the invocation according to the dictates of your own conscience." Not surprisingly, in both instances, clergy complied with the terms of the invitation: the clergy in Simpson generally eschewed sectarian references; while those in Forsyth County took full advantage of the license they were given. Surely, Forsyth County's clergy can be trusted to heed a request for ecumenism—or to decline the invitation.

As the Joyner panel rightly concluded, "[t]here is a clear line of precedent not only upholding the practice of legislative prayer, but acknowledging the ways in which it can bring together citizens of all backgrounds and encourage them to participate in the workings of their government." However, "while legislative prayer has the capacity to solemnize the weighty task of governance and encourage ecumenism among its participants, it also has the potential to generate sectarian strife. Such conflict rends communities and does violence to the pluralistic and inclusive values that are a defining feature of American public life." Rather than "pos[ing] a danger to the long established tradition of legislative prayer," as Whitehead states, the Joyner decision ensures that this tradition is carried out in a way that does not endanger our Nation's cherished ideals.

Ayesha Khan served as counsel for the plaintiff in the Joyner case. She has extensive experience with First Amendment issues, including the separation of church and state, the free exercise of religion and the right of free speech. She previously worked for Covington & Burling LLP in Washington, DC, and as a staff attorney at the ACLU's National Prison Project.

Suggested citation: Ayesha Khan, Precedent and the Joyner Decision: A Distinction Without Merit, JURIST - Hotline, Aug. 15, 2011, http://jurist.org/hotline/2011/08/ayesha-khan-legislative-prayer.php.

This article was prepared for publication by JURIST's professional commentary editorial staff. Please direct any questions or comments to them at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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