Every business day, thousands of government bodies at all levels begin sessions with prayers. Those prayers are supposed to be "non-sectarian" -- they are supposed to appeal to a Supreme Being without reference to religion.
But what if a prayer delivered at the start of a government meeting makes a specific reference to a particular religion, for example, using the name of Jesus?
A panel of the 4th U.S. Circuit Court of Appeals, one of the most conservative U.S. appeals courts in the country, has ruled such specific references are unconstitutional.
The U.S. Supreme Court last week left that ruling in place, but whether the appeals court ruling will have an effect on the government meetings across the country opened with Christian prayers remains to be seen.
The high court could always take on the dispute in some future case. But for the moment the appeals court ruling is the law in the Fourth Circuit: North Carolina, Maryland, South Carolina, Virginia and West Virginia.
The justices ruled in 1983 invocations at government sessions of all stripes do not violate the establishment clause of the First Amendment. The clause bans the making of any law respecting the establishment of religion or impeding the free exercise of religion.
But invocations at the beginning of government sessions are part of the "fabric of our society," the Supreme Court said in its 6-3 ruling in Marsh vs. Chambers.
In that case, a member of the Nebraska Legislature had challenged the non-sectarian prayer said at the beginning of each legislative session.
A federal judge ruled the prayer was constitutional, but paying a chaplain to say it was not. A federal appeals court ruled both were unconstitutional.
The Supreme Court majority reversed.
Writing for the majority, Chief Justice Warren Burger said: "The practice of opening sessions of Congress with prayer has continued without interruption for almost 200 years ever since the First Congress drafted the First Amendment, and a similar practice has been followed for more than a century in Nebraska and many other states. While historical patterns, standing alone, cannot justify contemporary violations of constitutional guarantees, historical evidence in the context of this case sheds light not only on what the drafters of the First Amendment intended the establishment clause to mean but also on how they thought that clause applied to the chaplaincy practice authorized by the First Congress.
"In applying the First Amendment to the states through the 14th Amendment, it would be incongruous to interpret the clause as imposing more stringent First Amendment limits on the states than the draftsmen imposed on the federal government," he added. "In light of the history, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, a violation of the Establishment Clause; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country."
Burger puckishly pointed out God is invoked in the lower courts that ruled against the invocation: "In the very courtrooms in which the United States district judge and later three circuit judges heard and decided this case, the proceedings opened with an announcement that concluded, 'God save the United States and this honorable court.' The same invocation occurs at all sessions of this [Supreme] Court."
For 28 years the ruling in Marsh has remained the law of the land, but the high court has never dealt with the question of sectarian prayers as invocations.
In Forsyth County, N.C., the County Board of Commissioners invites "religious leaders" of local congregations to give the invocation before each of its sessions. The board is the elected body that governs Forsyth County, which has approximately 350,000 residents and encompasses the city of Winston-Salem. The board's twice-monthly meetings are open to the public, the appeals court said, and for years it has started the meetings with a prayer and a recital of the Pledge of Allegiance.
When Janet Joyner and Constance Lynn Blackmon decided to attend a meeting Dec. 17, 2007, the local "religious leader" was laying it on pretty good -- like almost every previous invocation, his closed with the phrase, "For we do make this prayer in Your Son Jesus' name, Amen." The prayer also made a number of references to specific tenets of Christianity, from "the Cross of Calvary" to the "Virgin Birth" to the "Gospel of the Lord Jesus Christ," the appeals court said.
A federal judge found, and audio recordings confirm, the prayers frequently contained references to Jesus Christ, the appeals court said. At least half of the prayers offered from January 2006 to February 2007 contained concluding phrases such as: "We pray this all in the name under whom is all authority, the Lord Jesus Christ," "[I]t's in Jesus' name that we pray[,] Amen," and "We thank You, we praise You, and we give Your name glory, and we ask it all in Your Son Jesus' name."
Joyner and Blackmon filed suit against the county, alleging that the Dec. 17 prayer was just one example of the board's practice of sponsoring sectarian prayers at its meetings.
A federal judge in Greensboro, N.C., concluded the board's prayer policy in fact violated the First Amendment, advancing and endorsing Christianity.
A panel of the U.S. Court of Appeals for the Fourth Circuit agreed by a 2-1 vote.
"The [judge's] ruling accords with both Supreme Court precedent and our own," Circuit Judge James Wilkinson, a Reagan appointee, wrote for the majority. "Those cases establish that in order to survive constitutional scrutiny, invocations must consist of the type of non-sectarian prayers that solemnize the legislative task and seek to unite rather than divide. Sectarian prayers must not serve as the gateway to citizen participation in the affairs of local government. To have them do so runs afoul of the promise of public neutrality among faiths that resides at the heart of the First Amendment's religion clauses."
Barbara Milano Keenan, an Obama appointee and the first woman on the Fourth Circuit, joined in the opinion.
Circuit Judge Paul Niemeyer, a George H.W. Bush appointee, dissented.
"When offering legislative prayers in which the Divine Being is publicly asked for guidance and a blessing of the legislators, religious leaders will hereafter have to refrain from referencing the Divine Being with the inspired or revealed name, according to each leader's religion," Niemeyer said. "The majority's decree commands that every legislative prayer reference only 'God' or some 'non-sectarian ideal,' supposedly because other appellations might offend. Thus, in a stated sensitivity to references that might identify the religion practiced by the religious leader, 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 vs. Chambers ... and creates a circuit split," in the U.S. appeals courts. "Most frightfully, it will require secular legislative and judicial bodies to evaluate and parse particular religious prayers under an array of criteria identified by the majority."
Forsyth County then asked the U.S. Supreme Court for review.
"In the 28 years since Marsh," the county said in its petition, "a fundamental question has emerged regarding legislative prayer: Does the Constitution require the government to censor prayer content to exclude sectarian references? The question now looms over deliberative public bodies at every level of government across the country, as circuit courts [of appeal] are hopelessly conflicted on the issue. The resulting confusion has produced a rash of litigation, perplexed government attorneys struggling to advise their clients, and caused many public bodies to simply abandon their long-held invocation traditions for fear of legal challenge."
The appeals court panel majority "somehow concludes that because religious leaders offered sectarian prayers, Forsyth County's policy and implementation of its policy were for that reason not neutral," the petition said. "It states, 'Sectarian prayers must not serve as the gateway to citizen participation in the affairs of local government. To have them do so runs afoul of the promise of public neutrality among faiths that resides" in the Constitution. ... This argument actually backfires, though, requiring the county to police prayers, rather than to remain neutral. It also overlooks the real life fact that when Forsyth County calls for prayers from religious leaders under a neutral policy that is proactively inclusive, the prayers will reflect the religions of the religious leaders, not the preferences of the county."
The Supreme Court denied the request for review last Tuesday without comment.