Members of the U.S. Supreme Court passed up an opportunity earlier this week to clarify the role of government in regulating the content of public invocations that have gone on since the founding of the nation.Therefore, the core question remains unanswered: Must the government force prayer-givers to avoid the name of Jesus (or other specific deity names) when they pray before legislative meetings?
The U.S. Court of Appeals for the 4th Circuit said yes, but the rest of the country still says no. That conflict means the Supreme Court may yet weigh in on the question.
The Forsyth County (N.C). Commissioners adopted a practice that is common throughout the country: Invite local religious leaders to lead voluntary invocations to begin the public meeting and permit the invited speaker to pray as his or her heart dictates.
The 4th Circuit determined that the speakers too often ended their prayer with the common refrain of “in Jesus name we pray, Amen” and therefore demanded that the county “proactively discourage” such “sectarian” references.
The problem is that the 4th Circuit’s decision is in direct conflict with other federal cases. In 2008, the U.S. Court of Appeals for the 11th Circuit approved a policy nearly identical to the one adopted by Forsyth County.
The 11th Circuit determined that a speaker invited under a neutral policy is permitted to pray as his conscience dictates, even if the prayer references the name of the deity being addressed in the prayer. In 2010, a federal district court in New York and, in 2011, a federal district court in California considered the same questions and followed the lead of the 11th Circuit.
Both of those district court cases are now working their way through the appeals process and will eventually find themselves on the Supreme Court’s doorstep. When federal appellate courts disagree about the application of federal law, that creates what is commonly referred to as a “circuit split.”
One of the principal responsibilities of the high court is to provide uniformity in the application of federal and constitutional law. In the Forsyth County case, the Court refused to address the question, but it may eventually pick up a different case.
Legal analysts know that the Supreme Court expresses no position on an issue when they refuse to hear a case. The questions involving legislative prayer are no different. When the 11th Circuit determined that repeated references to Jesus in legislative prayers were constitutional, the Supreme Court refused to hear an appeal then as well.
The Court’s refusal to hear an appeal after the 4th Circuit came to the opposite conclusion is a shame, but all it means is that the Court has not yet chosen to address the conflict. And that clarity is certainly needed.
Right now, the law in the states of North Carolina, South Carolina, Virginia, West Virginia and Maryland must try to “proactively discourage” sectarian references — that is, they must censor prayers and instruct religious leaders as to how and to whom they can pray.
This is not the law in the rest of the country, however, and the other courts that have reviewed the issue have refused to engage in such an impossible and constitutionally impermissible task.
With decisions coming from the U.S. Court of Appeals for the 2nd Circuit, N.Y., and the U.S. Court of Appeals for the 9th Circuit, Calif., the Supreme Court will be asked once again to answer this important constitutional question.
The Alliance Defense Fund, which has been deeply involved in this question for years, will continue to litigate in favor of the historical standard until the Supreme Court eventually hears a case that will clear up the confusion.
Brett Harvey and David Cortman are attorneys with the Alliance Defense Fund (www.telladf.org), which represents the Forsyth County Board of Commissioners.
