Fourth Circuit: N.C. County Board's Prayer Policy Doesn’t Have a Prayer

By Pete Winn | August 2, 2011 | 4:40 AM EDT

Forsyth County (N.C.) government center. (Photo courtesy Forsyth County Board of Commissioners)

( – The U.S. Fourth Circuit Court of Appeals in Richmond, Va., has ruled that a county board in North Carolina may not open its meetings with clergy-led prayer.

The case involves an ACLU challenge to a policy adopted by the Forsyth County (N.C.) Board of Commissioners allowing local clergymen to open up meetings with prayer.

In a 2-to-1 decision, a three-judge panel last Friday upheld a lower court ruling by U.S. District Judge James Beaty that the prayer policy was unconstitutional because the majority of prayers offered were from Christian clergymen.

In his opinion for the majority, Chief Judge J. Harvie Wilkinson III wrote: “Because religious belief is so intimate and so central to our being, government advancement and effective endorsement of one faith carries a particular sting for citizens who hold devoutly to another.”

Under the county’s policy, invitations to clergy are sent out to all religious congregations in the county as identified by telephone directories and the Internet. Any clergyman who accepts the invitation is allowed to offer an invocation on a first-come-first-served basis.

The county policy asks the clergyman not to use the prayer as an opportunity to try to convert others – or to disparage any other faith.

The decision noted that the county had declined only one request:  to allow a Wiccan to offer an invocational prayer.

But in a dissenting opinion, Judge Paul Niemeyer chastised the majority on the panel, saying in its “stated sensitivity to references that might identify the religion practiced by the religious leader” the court had exceeded its authority and “the majority had dared to step in and regulate the language of prayer—the sacred dialogue between humankind and God.”

“(W)e now legislate, based on the imprecise notions of nonsectarianism, bowing to political correctness or universal inoffensiveness,” Niemeyer wrote,  “without regard to the dangers of governmental censorship of religious expression.”

The policy was developed after the American Civil Liberties Union of North Carolina filed suit in 2007 on behalf of three Forsyth County residents seeking to stop the prayers, arguing that the practice violated the Establishment Clause of the First Amendment.

“I am very happy with the Court’s ruling today because this court order preserves freedom of conscience for people of all different beliefs, whether they are in the majority or the minority, by requiring our government to remain neutral in matters of religion,” Constance Blackmon, one of the plaintiffs, said in a statement.  

But John W. Whitehead, president of the Rutherford Institute in Charlottesville, Va., a religious liberties law firm which had filed legal briefs in defense of the county policy, decried the ruling.

“Prayers before legislative bodies are as old as the republic and were authorized by those who wrote the Constitution,” Whitehead said in a statement. “In this case, all religions are represented and, thus, it is clearly a constitutional practice.”

A decision on an appeal has not yet been made.

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