An End to Sectarian Prayers in Forsyth County, and How Wiccans Have Shaped the Debate

Jason Pitzl-Waters —  January 19, 2012 — 8 Comments

On Tuesday the Supreme Court of the United States denied certiorari (judicial review) in the case of Forsyth County, North Carolina v. Joyner, which challenged the local government’s opening prayer policy. In this instance, Forsyth County had constructed an “inclusive” (and thus theoretically constitutionally protected) model where all comers could have a turn, but challengers to the policy noted that the prayers were overwhelmingly Christian, and created a chilling atmosphere towards non-Christian faiths.

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.”

During the period contested in the lawsuit, four-fifths of the prayers referred to “Jesus” in one form or another. The 4th Circuit made very clear that the lack of balance in presented prayers was an important factor in ruling that Forsyth’s policy violated the Establishment Clause.

The Lewis F. Powell, Jr., U.S. Courthouse
The Lewis F. Powell, Jr., U.S. Courthouse, home of the Fourth Circuit Court of Appeals.

“…legislative prayer must strive to be nondenominational so long as that is reasonably possible — itshould send a signal of welcome rather than exclusion. Itshould not reject the tenets of other faiths in favor of just one.Infrequent references to specific deities, standing alone, donot suffice to make out a constitutional case. But legislativeprayers that go further — prayers in a particular venue that repeatedly suggest the government has put its weight behinda particular faith — transgress the boundaries of the Establishment Clause. Faith is as deeply important as it is deeply personal, and the government should not appear to suggestthat some faiths have it wrong and others got it right.”

This skirmish over prayer before government meetings is just the latest in a protracted struggle between the ACLU and the more socially conservative-minded Alliance Defense Fund. While the ACLU is generally skeptical of allegedly inclusive sectarian open prayer models, the Alliance Defense Fund believes them to be constitutionally protected, and part of America’s heritage. Responding to this setback, the ADF said that “the standard for prayer policies in the 4th Circuit will be different from the standard held by the rest of the country.”

“No federal court has ruled that prayers cannot be offered before public meetings. The Supreme Court has simply missed an opportunity to clear up the differing opinions among the various circuits about the content of the prayers. This means that, for the time being, the standard for prayer policies in the 4th Circuit will be different from the standard held by the rest of the country. ADF will continue to litigate in favor of the historical standard until the Supreme Court eventually hears a case that will clear up the confusion.”

The Alliance Defense Fund had a lot invested in this case, and other cases like this, as Forsyth was following their blueprint for protected government sectarian prayer. A blueprint partially constructed around two 4th Circuit cases involving public prayers and modern Pagans: Simpson v. Chesterfield County, the case that helped create the so-called “Wiccan-proof” invocation policy, and the Darla Wynne case, in which a Wiccan from South Carolina won a battle against sectarian government prayer. Despite the fact that towns like Greece, New York and Lancaster, California have won lower-court challenges by including a smattering of minority religions in sectarian prayers (aka the “include a Wiccan gambit”), the law isn’t settled on what, if any, formula for sectarian prayer at a government meeting will pass constitutional muster. It can be folly to read too much into a denied certiorari request, but by letting this decision stand, a decision that invokes both Simpson’s and Wynne’s cases, SCOTUS does leave the idea that balance is necessary in a sectarian prayer model on the table.

Cynthia Simpson and Darla Wynne

Cynthia Simpson and Darla Wynne

Eventually, SCOTUS will have to make a stand on these sectarian prayer policies, just as it recently took a stand on the question of “ministerial exception.” A concept that had been invoked several times in the lower courts, but never in our nation’s highest court. When it does, cases that involve Wiccans and other minority faiths will have a major influence on how that decision is made. In the meantime, Americans United, the ACLU, the Alliance Defense Fund, and several other advocacy groups, will try to build up their positions in the lower courts. No doubt several towns and cities who fall under the jurisdiction of the 4th Circuit Court of Appeals are currently talking with their lawyers over their prayer policies, and whether they need to include more Wiccans.

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Jason Pitzl-Waters

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  • Anonymous

    Jason, You’re correct that one can’t read much from denial of cert. On another topic, Rick Perry, darling of the NAR will apparently drop out of the race for GOP nomination today. Guess that prayer rally was in vain.

    • Crystal Kendrick

      Now if only Santorum would drop out.

      • Anonymous

        Nah… Rick Santorum is the greatest gift that could be given to both non-Christians AND President Obama.

        He’s great for non-Christians, because there’s no possible way that a Christofascist piece of crap like that could get elected. (Check the polls, for example…) He represents the last gasp of Christian Supremacists clutching at their entitlements and privilege…just as the White Supremacists did the same after the Civil Rights era. Remember, David Duke (R-LA) was once a fairly popular elected official…but who pays attention to him now? Even the Conservatives want nothing to do with him. He is a pariah, only supported by a tiny minority.

        And the same will happen to the Christian Supremacists. Their power will weaken as people realize that they no longer have the political sway that they used to have. And the best way to make “normal” people run away from them is to point out that the openly stated goals of the Christian Conservatives (like Santorum) are almost identical to the goals of the Islamic Conservatives in Islamist parties around the globe. (Opposition to LGBT Rights, laws based on religious texts, opposition to pornography, etc.) Just because they pray to “Jesus” instead of “Allah” does not mean that they are really that different.

  • Baruch Dreamstalker

    No government function is served by a prayer before a city council meeting. This, as well as inclusiveness, should be part of the challenge to such prayers: Demonstrate what necessary state interest is served by a practice that inevitably raises Establishment Clause questions.

  • Anonymous

    A quick look at the Alliance Defense Fund web site reveals that they consider non-denominational prayer and inclusive of many faiths invocations before public meetings as “censoring [Christian, evangelical] prayer.” It seems to me that this organization reads a lot of pro-theocracy into the U.S. Constitution and the First Amendment.

    Interestingly, I note the telling difference in name between the AMERICAN CIVIL LIBERTIES UNION and the ALLIANCE DEFENSE FUND. When it gets down to it, I am strongly for UNION and against FUND. I want to live in a civil and liberated community, not in a money-driven company camp. Citizens, not employees.

  • http://egregores.blogspot.com Apuleius Platonicus

    The backgrounds of the folks in the Alliance Defense Fund are pretty interesting and impressive.

    Allan Sears (president, CEO, and general counsel) worked in the Justice Department under two different Attorneys General, and also worked as assoiciate solicitor for the Dept of the Interior.

    Chapman Cox (Chairman) is the former General Counsel for the US Dept of Defense.

    Edward Christie, Jr. (Board of Directors) is the former CFO of the United Way and also of the USO.

    Dale Nabb (Board) was CEO of SmithKline Clinical Laboratories for 25 years.

    Dr. James Dobson (Founder) was the founder and head of Focus on the Family for over 30 years.

    source

  • Obsidia

    More about the Alliance Defense Fund here:

    http://mediamatters.org/research/200510140005

  • http://www.magickal-media.com Alice C. “A.C.” Fisher Aldag

    Sectarian prayer IS protected under the First Amendment.

    Forcing others to participate in sectarian prayer — ain’t.