The 4th U.S. Circuit Court of Appeals today upheld a trial judge's ruling, and agreed with the position of the Baptist Joint Committee (quoting the BJC's brief in spots), that the invocation policy of North Carolina's Forsyth County Commission violates the Establishment Clause. Despite the neutrality of the policy's text – which allowed for clergy of any faith to deliver an invocation – its practical application resulted in the consistent promotion of Christianity, the Court found. The 2-1 majority fell in line with the longstanding interpretation of Supreme Court precedent in Marsh that insists legislative prayer can pass constitutional muster only by being nonsectarian, without promoting a single faith above others.
This is a superbly written decision. The majority truly gets it, the church-state balance that is so important for the integrity of both church and state. Some highlights from the opinion:
…[w]hile legislative prayer has the capacity to solemnize the weighty task of governance and encourage ecumenism among its participants, it also has the potential to generate sectarian strife. Such conflict rends communities and does violence to the pluralistic and inclusive values that are a defining feature of American public life. The cases thus seek to minimize these risks by requiring legislative prayers to embrace a non-sectarian ideal. That ideal is simply this: that those of different creeds are in the end kindred spirits, united by a respect paid higher providence and by a belief in the importance of religious faith….
The case law thus sets out clear boundaries. As amicus Baptist Joint Committee for Religious Liberty puts it, "this [c]ourt’s legislative prayer decisions have recognized that the exception created by Marsh is limited to the sort of nonsectarian legislative prayer that solemnizes the proceedings of legislative bodies without advancing or disparaging a particular faith." Put differently, legislative prayer must strive to be nondenominational so long as that is reasonably possible — it should send a signal of welcome rather than exclusion. It should not reject the tenets of other faiths in favor of just one. Infrequent references to specific deities, standing alone, do not suffice to make out a constitutional case. But legislative prayers that go further — prayers in a particular venue that repeatedly suggest the government has put its weight behind a 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 suggest that some faiths have it wrong and others got it right.
…
As a practical matter, courts should not be in the business of policing prayers for the occasional sectarian reference — that carries things too far. But the dissent gives the impression that virtually any review by the majority of the invocations under challenge would constitute impermissible "parsing." Quite simply, this stark approach leaves the court without the ability to decide the case, by barring any substantive consideration of the very practice under challenge. It is to say the least an odd view of the judicial function that denies courts the right to review the practice at issue. For to exercise no review at all — to shut our eyes to patterns of sectarian prayer in public forums — is to surrender the essence of the Establishment Clause and allow government to throw its weight behind a particular faith. Marsh did not countenance any such idea.
…
It is not enough to contend, as the dissent does, that the policy was "neutral and proactively inclusive," when the County was not in any way proactive in discouraging sectarian prayer in public settings. …[T]he Board’s policy did not require that invocations be "nonsectarian" and avoid "advanc[ing] any one faith or belief."…On a broader level, and more importantly, citizens attending Board meetings hear the prayers, not the policy. What this means is that we cannot turn a blind eye to the practical effects of the invocations at issue here. The dissent suggests that the "frequency of Christian prayer" was merely the "product of demographics," post at 42, and the County "could not control whether the population was religious." What the dissent offers as a defense of the policy, however, is one of the problems with it. Take-all-comers policies that do not dis- courage sectarian prayer will inevitably favor the majoritarian faith in the community at the expense of religious minorities living therein. This effect creates real burdens on citizens — particularly those who attend meetings only sporadically — for they will have to listen to someone professing religious beliefs that they do not themselves hold as a condition of attendance and participation. "To . . . Jewish, Muslim, Bahá’i, Hindu, or Buddhist citizens[, ]a request to recognize the supremacy of Jesus Christ and to participate in a civic function sanctified in his name is a wrenching burden." Such burdens run counter to the essential promise of the Establishment Clause.
