Affordable Care Act - the Virginia Municipal League

Federal court rules against prayersat government meetings ... againThe First Amendment to theconstitution: Congress shall make nolaw respecting an establishment of religion,or prohibiting the free exercise thereof ....Over the last nine years,the U.S. Court of Appealsfor the 4 th Circuit and thefederal district courts inthe circuit have ruledrepeatedly that sectarianprayers delivered at local governmentmeetings violate the First Amendment’sEstablishment Clause. Themost recent case – Hudson v. PittsylvaniaCounty, Va., – involves the PittsylvaniaCounty Board of Supervisors andcounty resident Barbara Hudson.The federal district court issued aruling on March 27.At the heart of the dispute wasthe county board’s regular practiceof beginning its meetings with aninvocation that invoked the name ofJesus. After Hudson complained, theboard adopted a non-sectarian prayerpolicy, but the practice of praying inthe name of Jesus continued. Hudsontestified that at the board meetingfollowing her letter of complaint tothe county attorney that all sevenboard members offered Christianprayers to start the meeting. In thepast, only one prayer was offered. Inaddition, after the board adopted thenon-sectarian prayer policy, the courtnoted that the board invited ministersto the public comment period, wherethey prayed Christian prayers, withseveral board members standing andjoining in with “Amens.”Here is an example of the invocationsthat the court had to deal with:“Gracious heavenly father, we thankyou for the opportunity to addressyou, and thank you O Lord, becauseyou made all of this possible. Youare our God, you are our King, youare the reason we are here. God,without you, and Jesus, without you,there would be no life on earth, andwe would not be able to sit downand express our Christian valuesbefore the good people of PittsylvaniaBy Mark K. FlynnCounty. Amen.”In its decision, the federal districtcourt relied on the previous rulingsof the appeals court on the standardfor official prayers and otherprayers sanctioned by a public body:“Legislative prayer must strive to benondenominational so long as that isreasonably possible – itshould send a signal ofwelcome rather thanexclusion. It should not reject thetenets of other faiths in favor of justone. Infrequent references to specificdeities, standing alone, do not sufficeto make out a constitutional case.But legislative prayers that go further– prayers in a particular venue thatrepeatedly suggest the governmenthas put its weight behind a particularfaith – transgress the boundaries ofthe Establishment Clause. Faith isas deeply important as it is deeplypersonal, and the government shouldnot appear to suggest that some faithshave it wrong and others got it right.”Following that standard, the courtruled that the practice of the countyboard of supervisors violated theEstablishment Clause of the FirstAmendment.The court also commented onanother, typical undercurrent in thiskind of case – that the plaintiff was “acontentious character” in the county.The court noted: “Hudson’s historicrole as a board antagonist is besidethe point. The fact that Hudson hasclashed with the board in the pastcannot absolve the board of its clearviolation of the Establishment Clauseor change the fact that Hudsonpersonally experienced the board’spractice of opening each meeting witha Christian prayer that was offensiveto her.”The prior cases that the districtcourt relied on are: Wynne v. Townof Great Falls (2004), where the 4 thCircuit struck down official, sectarianprayers by a town council; and Turnerv. City Council of Fredericksburg (2008),where the 4 th Circuit again foundthat the invocation at the beginningof a meeting is an official prayer thatmust be non-sectarian. In the Turnercase, a council member who was aminister refused to comply with thecouncil’s non-sectarian prayer policyand sued – unsuccessfully – when thecouncil would not allow him to givethe opening prayer. Rev. HashmelTurner argued that the policy violatedhis freedom of religion. The courtdisagreed, due to the prayer beingan official prayer as a part of themeeting. The most recent 4 th Circuitcase was Joyner v. Forsyth County (2011),which was factually similar to thePittsylvania County case.The lesson from the federal caselaw that controls Virginia is clear:When prayers are part of a localgoverning body’s meetings, theprayers are official speech. If thegoverning body by rule (prayer policy)or practice (what they do in the meetings)regularly allows sectarian prayersof any kind, that is a violation of theEstablishment Clause of the FirstAmendment. This law is as settled asany other legal principle in the 4 th Circuit,which includes Virginia, NorthCarolina, South Carolina, Marylandand West Virginia.It may be frustrating to somelocal elected officials not to be ableto pray as they see fit, but the lawis clear. Governing bodies have aresponsibility to uphold the FirstAmendment by taking the stepsnecessary to avoid sectarian prayersduring their meetings.About the authorMark K. Flynn is general counsel for theVirginia Municipal League.VIRGINIA TOWN & CITY | april 2013 11