As if the Fourth U.S. Circuit Court of Appeals isn't busy enough this week. Not only will it decide on ObamaCare, it got the above question, too, in a case in which The Family Foundation filed an amicus brief last year. Now asked, another three judge panel will decide the constitutionality of the prayer policy of the Forsyth County, N.C. — but with national implications. The policy, drafted by the Alliance Defense Fund, allows for anyone of any faith to pray before county government meetings on a first come, first serve basis. The content of the prayers are not reviewed by government officials. Plaintiffs represented by the ACLU contend that, because most of the "prayers" at the meetings over an eighteen month period were "sectarian," the policy is unconstitutional. According to ADF attorneys, plaintiffs have argued in briefs that any prayer before public meetings is unconstitutional.
Judges Harvie Wilkinson, Paul Niemeyer and Barbara Keenan comprise the panel. If their questioning of attorneys arguing the case is any indication of where they stand on the issue, Judge Keenan is clearly in the ACLU camp. Appointed to the court by President Obama, she was particularly hostile toward ADF's arguments and clearly favored the idea of "inclusive" prayers if there were going to be any prayers at all. Judge Niemeyer appeared much more favorable toward public prayer, stating that prayers without mentioning a specific deity are "just words." Judge Wilkinson seemed like the swing vote, questioning both sides on multiple issues throughout the hour and ten minute hearing.
The details of this case date back to March 2007 when the ACLU and Americans United for Separation of Church and State filed suit against North Carolina's Forsyth County Board of Supervisors, stating:
[the Board] does not have a policy which discourages or prohibits those whom [the Board] has invited to deliver prayers from including references to Jesus Christ, or any other sectarian deity, as part of their prayers.
As ADF Senior Legal Counsel Mike Johnson, who argued in favor of the policy, aptly pointed out, "An invocation according to the dictates of the giver's conscience is not an establishment of religion. If it was, you'd have to argue that the drafters of the U.S. Constitution were violating the Constitution in the prayers and invocations that they themselves offered." (Mike Johnson testified, at Family Foundation request during the 2009 General Assembly, on behalf of the rights of state police chaplains to pray in Jesus' name. See video.)
A primary issue in the case is whether or not a voluntary prayer before a government meeting is "government" or private speech. If private, it is clearly protected by the First Amendment. But by the ACLU's logic, anything said at a government meeting by a private individual is government speech just by virtue of saying at that meeting.
Several Virginia legislators also signed on to an amicus brief in support of religious liberty in Joyner v. Forsyth County. They include Delegates Kathy Byron (R-22, Lynchburg), Bill Carrico (R-5, Galax), Bob Marshall (R-13, Manassas), and Brenda Pogge (R-96, Yorktown); and Senators Mark Obenshain (R-26, Harrisonburg) and Jill Holtzman Vogel (R-27, Winchester).