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Professor John Korzen not surprised appeals court split on government meeting prayer case

An appeals court ruling against sectarian prayer at government meetings says it’s not just the prayer policy that matters, but the outcome — the actual prayers given — as well.

On July 29, a panel of the 4th U.S. Circuit Court of Appeals in a 2-1 decision ruled in favor of residents who sued the Forsyth County Board of Commissioners in 2007 to stop the board from allowing Christian prayers to be given before its meetings.

On Monday, the board is expected to vote in favor of appealing that ruling to the U.S. Supreme Court. Six of the seven commissioners have said they will vote in favor of an appeal.

Under the county’s prayer policy, any member of the clergy could volunteer to offer a prayer, without any controls on what could be said. Clergy were asked to avoid using their time at the microphone to try to convert others.

The county’s policy explicitly said the county was not aligning itself with any faith by allowing prayers.

Because 80 percent of the prayers referenced Christian beliefs, the court majority said, and because no non-Christian deity was ever mentioned in a prayer, the county’s policy violated the Constitution “by advancing and endorsing Christianity to the exclusion of other faiths.”

“This is not a situation where all religions were represented,” said Katherine Parker, the attorney for the American Civil Liberties Union who argued the case for the residents objecting to sectarian prayer. “Here, the only deity that has been referenced is Jesus.”

The county has argued that leaders of non-Christian faiths have given the opening invocation at board meetings. But since the issue became controversial in 2007 and the county adopted its prayer policy, no non-Christians faith leaders have stepped forward to pray. Two area Jewish rabbis have said they would not give even a nonsectarian invocation unless the county changed its policy to forbid sectarian prayers.

The 4th Circuit court majority — Judges J. Harvie Wilkinson III and Barbara M. Keenan — ruled that to be constitutional, invocations “must consist of the type of nonsectarian prayers that solemnize the legislative task and seek to unite rather than divide.”

Writing a separate minority opinion in dissent, Judge Paul V. Niemeyer said the county’s policy is “neutral” and that it was not the county’s fault that so many Christian prayers were offered under it.

“The county provided the most inclusive policy possible, but it could not control whether the population was religious and which denominations’ religious leaders chose to accept the county’s invitation to offer prayer,” Niemeyer wrote.

“Effectively, they are being punished for the demographics of the community they serve,” said Mike Johnson, the attorney for the Alliance Defense Fund who argued the county’s case.

Read the full story here.