Joyner v- Forsyth County

Forsyth County To Appeal Fourth Circuit Prayer Ruling

A three-judge panel of the Fourth U.S. Circuit Court of Appeals, by a 2-1 vote, recently upheld a lower court's ban on prayers by clergy at public meetings that may mention the name of a particular deity. The ruling, in Joyner v. Forsyth County, contradicts decades of Supreme Court precedent and is in conflict with several other circuit court opinions on the same issue. It invites government censorship of public prayer. The Family Foundation joined with several other family policy councils in an amicus brief to the court and was in the audience when oral arguments were made. Alliance Defense Fund allied attorney and founding dean of Louisiana College's Pressler School of Law Mike Johnson, who argued the case before the Fourth Circuit in May, replied in a statement that:

America’s founders opened public meetings with prayer. There's no reason that today's public officials should be forced to censor the prayers of those invited to offer them simply because secularist groups don't like people praying according to their own conscience.

Throughout his majority opinion, Judge Harvey Wilkinson seeks to recognize the "legitimacy of legislative prayer" while at the same time requiring that "prayer" be void of any religious, or specifically Christian, references. It ridicules sectarian prayer as denying "invocations their inclusive aspect" and renders all faiths equal, stating that "those of different creeds are in the end kindred spirits." This position exposes the idea of government "neutrality" toward religion for what it is — pure censorship and hostility toward public exercise of faith. In a frightening opinion fraught with contradiction and illogic, the majority reduces religious expression to a place deserving less protection than other speech: "The First Amendment teaches that religious faith stands on a different footing from other forms of speech and observance."

(Note the inclusion of "observance" and not just "speech"!) Essentially, the majority argues that simply uttering the name of Christ at a public meeting "advances" Christianity, offends people of other faiths, and therefore cannot be tolerated, unless there is an arbitrary number of other deities recognized as well.

Judge Paul V. Niemeyer strongly dissented, writing that:

The majority has dared to step in and regulate the language of prayer — the sacred dialogue between humankind and God. Such a decision treats prayer agnostically; reduces it to civil nicety; hardly accommodates the Supreme Court's jurisprudence in Marsh v. Chambers . . . and creates a circuit split [with the 11th Circuit]. ... Most frightfully, it will require secular legislative and judicial bodies to evaluate and parse particular religious prayers under an array of criteria. ... I respectfully submit that we must maintain a sacred respect of each religion, and when a group of citizens comes together, as does the Forsyth County Board of Commissioners, and manifests that sacred respect — allowing the prayers of each to be spoken in the religion's own voice — we must be glad to let it be.

The irony is that secularists claim there must be a "separation of church and state" except when the state can impose itself as editor-in-chief of prayer. As Judge Neimeyer alludes to, the prayers are an affirmation of the individual's belief and his or her exhortation to the deity in which he or she believes to guide the legislative body to which he or she is invited. Government intrusion, then, is not safeguarding an advancement of religion by government, but infringing on the individual's right to exercise his or her religious expression.

Other federal courts have upheld the ADF model invocation policy on which Forsyth County's policy is based, including a very recent July 11 decision that upheld the invocation policy of Lancaster, Calif. Each of the four other federal courts to review similar invocation policies since 2009 has found them to be constitutional. Not only that, but there was another vote recently — a 6-1 vote by the Forsyth County Board of Commissioners to appeal the decision to the U.S. Supreme Court (Stamford Advocate).

The details of this case date back to March of 2007 when the ACLU and Americans United for Separation of Church and State filed suit against Forsyth County Board, 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.” The two plaintiffs represented by the ACLU complained that a prayer offered at one specific meeting in December of 2007 that mentioned the “Cross of Calvary,” the “Virgin Birth” and “Jesus” made them feel “distinctly unwelcome and ‘coerced by [their] government into endorsing a Christian prayer.’”

Is Public Prayer Unconstitutional?

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).

Augusta State, Illinois Church Cases Show Religious Liberty Remains In Jeopardy

About three months ago, we told you about the debate regarding the potential removal of a Mojave Desert memorial cross on public property. Later, we gave you an update on the Joyner v. Forsyth County case in which the ACLU and Americans United for Separation of Church and State filed suit against the Forsyth County, N.C., Board of Supervisors because it did not prohibit prayers in Jesus' name. Last month, we told you about the federal judge who declared the National Day of Prayer to be unconstitutional. Our religious liberty is in jeopardy. This month, we regret to report that the attacks on our religious liberty have not let up. This past Tuesday, the Alliance Defense Fund filed suit against Augusta State University, in Georgia, on behalf of counseling graduate student Jennifer Keeton, on the basis of religious viewpoint discrimination (see news release).

Augusta State has threatened to expel Keeton if she does not keep silent and, furthermore, renounce her Christian beliefs regarding human sexuality and gender identity (see Shane Vander Hart at Caffeinated Thoughts blog). In something akin to yet another campus case we reported, Christian Legal Society v. Martinez, the university has told Keeton that she must enroll in diversity and sensitivity training, read suggested material on the topic, and write papers about how her diversity training and reading have influenced her. If she does not conform, she will be expelled, despite her upstanding academic record and clinical performance. Keeton has, in effect, been told that she must deny her faith in order to continue her education. So much for freedom of thought academia is supposed to endorse and encourage.

Religious discrimination is not contained to college campuses. River of Life Kingdom Ministries in Illinois bought a building with the intent of holding Sunday church services. However, city regulations, while allowing facilities such as day care centers, community centers, taverns and live entertainment venues, specifically prohibit churches.

River of Life filed suit and the Seventh U.S Circuit Court of Appeals sided with the discriminatory city regulations stating, "Commerce and industry must be recognized for what they are, necessary and desirable elements of the community." The court, in essence, stated that churches are not necessary and are undesirable to the community (see ADF's Joel Olster at Speak Up blog). Moral and religious teaching aside, churches provide entire communities benefits that city-allowed facilities provide — day care, community activities, and entertainment — often at no charge to taxpayers. Not only that, but the decision guts the Religious Land Use and Institutionalized Person's Act, a bipartisan law signed by then-President Bill Clinton (see RLUIPA.com).

Religious discrimination is a pervasive force throughout our culture. The Family Foundation is keenly aware of the danger facing our religious freedoms. This summer, we have been hard at work tracking the wave of religious discrimination moving across the county and determining how best to protect and advance your freedoms. Join us today as we persist in this struggle to defend and value our faith.

Family Foundation Files Brief In National Day Of Prayer Case

The Family Foundation today signed onto an amicus brief (see brief) by Liberty Institute filed in the Seventh U.S. Circuit Court of Appeals in support of the National Day of Prayer in Freedom from Religion Foundation v. Obama (see news release). Those represented in the brief in addition to The Family Foundation include Dr. James Dobson, the Family Research Council, Focus on the Family Action (CitizenLink), the American Civil Rights Union, Let Freedom Ring, and Liberty Counsel, as well as 27 other state family policy councils. On April 15, U.S. District Judge Barbara Crabb ruled that the federal government's observation of prayer is unconstitutional (see Christian Post), despite numerous rulings from the U.S. Supreme Court that protect long-standing traditions of religious invocations. Today's brief argues that not only is the National Day of Prayer constitutional, but that Judge Crabb's ruling establishes active hostility to religion and must be reversed.

When Congress passed a statute in 1952 calling for the president to issue a proclamation designating the National Day of Prayer, it memorialized the virtually unbroken tradition of presidents from Washington to Truman, each of whom designated a day of prayer.

In May, The Family Foundation also joined an amicus brief in the Fourth U.S. Circuit Court of Appeals in another important religious liberty case, Joyner v. Forsyth County (N.C.). The details of this case date back to March of 2007 when the American Civil Liberty Union 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.

It is clear that attacks on our first freedom, the right of conscience, seem to be coming every day. The National Day of Prayer has been recognized by presidents of both parties and by Congress for decades and prayer has been part of our national character since its founding. It is appalling that a single judge can undermine that longstanding tradition but, unfortunately, the courts have a mixed record at best on protecting our First Amendment rights.

The Family Foundation has been, and always will be, a voice for religious freedom in our commonwealth. The words of Thomas Jefferson's Virginia Statute for Religious Freedom — that are the foundation for the tradition of religious liberty in our nation and the precursor to the First Amendment — must be preserved and protected. That is a legacy that we have inherited and we must defend.

Family Foundation Files Brief In Religious Liberty Case

Recently, The Family Foundation, in conjunction with several other state family policy councils, filed an amicus brief in the religious liberty case of Joyner v. Forsyth County. The details of this case date back to March of 2007 when the ACLU and Americans United for Separation of Church and State filed suit against North Carolina's Forsyth County Board of Supervisors, in which it stated:

[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.

This is yet another blatant, undisguised attack on the free exercise of Christian faith. But our friends at the Alliance Defense Fund are defending the Board — and our liberty — in this case.

Joyner v. Forsyth County was characterized by legal gymnastics for nearly three years until January when the U.S. District Court for the Middle District of North Carolina sided with the ACLU. Shortly after, the Board appealed the ruling and the case now in headed to the U.S. Court of Appeals for the Fourth Circuit, based in Richmond. Since Virginia also resides in the Fourth Circuit, the decision made in this case could profoundly impact religious liberty in Virginia. Therefore, The Family Foundation felt it imperative to stand up for our freedoms by jointly filing an amicus brief.

As ADF Senior Legal Counsel Mike Johnson aptly points 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 testified in committee during the 2009 General Assembly, at our request, on behalf of a bill to allow state police chaplains the religious liberty rights to pray in Jesus' name.)

Several Virginia legislators also signed on to an amicus brief in support of religious liberty in Joyner v. Forsyth County, including Delegtes 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). Unfortunately, due to uncontrollable circumstances, the five-hour window for legislators to sign on precluded many others who expressed a desire to join the brief. Those who could not, given the short deadline, include Delegates Tag Greason (R-32, Potomac Falls) and Ed Scott (R-30, Culpeper), and Senator Steve Newman (R-23, Forest). (There may be an opportunity for to sign on to an amended brief, but if your legislators are not listed here, it may simply be because they weren't able to respond in the short window.