There’s been quite a bit of discussion this year concerning when sectarian prayers in the United States are permissible in a governmental setting. We’ve had the drama of the “Wiccan-proof” prayer policy in Frederick County, Maryland, and Lancaster, California’s voter-approved sectarian policy, which has withstood one legal challenge so far. Both of these prayer policies are hoping that a stated commitment to broad inclusion will protect them from litigation, but a new ruling in the 4th Circuit Court of Appeals seems to have thrown some doubt on the idea that simply saying you’re inclusive while showcasing predominantly sectarian Christian prayer is acceptable.
The 4th U.S. Circuit Court of Appeals today ruled 2-1 that the Forsyth County Board of Commissioners’ preference for Christian prayers violates the constitutional separation of church and state. […] The record in the case indicates that 26 of the 33 invocations given from May 29, 2007, until Dec. 15, 2008, contained at least one reference to Jesus, Jesus Christ, Christ, Savior or the Trinity. The appellate court majority said government favoritism in religion is wrong. “Faith is as deeply important as it is deeply personal,” wrote Judge J. Harvey Wilkinson, “and the government should not appear to suggest that some faiths have it wrong and others got it right.”
If this ruling should withstand a Supreme Court challenge, it could change the tactics of groups like the Alliance Defense Fund, a main proponent of the inclusive sectarian model. They know that these sorts of policies favor the religious majority, typically Christianity, and that religious minorities will be drowned out in a sea of invocations to Jesus. A point brought up in the 4th Circuit’s ruling.
…the Board clarified that the prayers were “not intended, and shall not be implemented or construed in any way, to affiliate the Board with, nor express the Board’s preference for, any faith or religious denomination.” Instead, the stated goal of the policy was to “acknowledge and express the Board’s respect for the diversity of religious denominations and faiths represented and practiced among the citizens of Forsyth County.” Despite that language, the prayers repeatedly continued to reference specific tenets of Christianity. These were not isolated occurrences: between May 29, 2007 and December 15, 2008, almost four-fifths of the prayers referred to “Jesus,” “Jesus Christ,” “Christ,” or “Savior.”
What’s the problem with this? It creates a environment of intimidation and unspoken preference for one religious point of view in a place that is supposed to serve and be open to all citizens regardless of their religious preferences.
On Joyner and Blackmon’s account, the overall atmosphere made them feel distinctly unwelcome and “coerced by [their] government into endorsing a Christian prayer.” Blackmon claimed that she felt compelled to stand and bow her head because of the Chair’s instruction to stand and because of the audience’s response. Joyner offered a similar account, believing that if she had failed to comply, it would have “negatively prejudice[d] consideration of [her] intended petition as a citizen appearing for public comment.” Both characterized the prayer as sectarian, with Blackmon referring to it as including a “one-minute sermon.”
This puts into doubt the legal fig-leaf of Lancaster, California’s token inclusion of non-Christians. While the court ruled that the prayer policy of the Forsyth County Board of Commissioners is not necessarily unconstitutional, the overwhelmingly Christian nature of the sectarian prayers helped “create an environment in which the government prefers — or appears to prefer — particular sects or creeds at the expense of others.” If your prayer policy is open, but 4/5’s of your prayers are to Jesus, then you’re creating an atmosphere of preference that (perhaps inadvertently) endorses one type of religiosity over another.
It should also be noted that the 4th Circuit’s decision referenced two cases they previously heard involving Pagans and prayer. Simpson v. Chesterfield County, the case that helped created the so-called “Wiccan-proof” prayer policy, and the Darla Wynne case, in which a Wiccan from South Carolina won a battle against sectarian government prayer. In fact, the Alliance Defense Fund’s “model invocation policy” was designed after these two cases involving Pagans and sectarian prayer earned national attention. So this is a new wrinkle of constitutional needle-threading that proponents of sectarian prayer at government meetings will have to address. The “include a Wiccan” gambit may not work if the rest of the prayers overwhelming endorse Christ. Will those who desperately want to invoke Jesus be able to stomach balancing that out with non-Christian prayers? Expect future challenges to address this very issue. Frederick County, Virginia may now technically be open to polytheist invocations, but they are under the 4th Circuit Court’s jurisdiction, so they better watch their balance.