Lawyer Michael Johnson of the Alliance Defense Fund is representing the county in the case and filed the objection to Sharp’s recommendation. Katy Parker, legal director of the American Civil Liberties Union of North Carolina, represents plaintiffs Janet Joyner and Constance Lynn Blackmon. Parker said she would respond to the county’s objection by the end of the week with a filing of her own.
County commissioners appear split on the issue of continuing to wage a battle in the courts over sectarian prayer prior to county commissioner meetings.
Commissioner Beaufort Bailey said he agrees with Judge Sharp’s recommendation and expects Judge Beaty to rule in favor of Joyner and Blackmon. Bailey’s concern is that if the county commissioners decide to appeal the case to the US Supreme Court, it could prove to be a waste of taxpayer money.
“We don’t have a chance to win,” Bailey said. Debra Conrad, vice-chair of the county, pointed out that the Alliance Defense Fund is representing the county on a pro bono basis. She acknowledged that the legal advocacy group, which describes itself as “a legal alliance defending the right to hear and speak the Truth through strategy, training, funding and litigation,” will not cover the county’s expenses if Judge Beaty awards damages to Joyner and Blackmon.
Conrad said the Rev. Steve Corts, a local minister and leader of the NC Partnership for Religious Liberty, has pledged financial assistance to the county if the court awards damages to the plaintiffs.
“This is not something that will cost the taxpayers anything,” Conrad said. “I absolutely support his endeavor and I would fight this all the way to the Supreme Court.”
Commissioner Walter Marshall said he’s concerned about the Alliance Defense Fund representing the county in the lawsuit.
“It’s theocracy versus democracy,” Marshall said. “The people who are behind this are trying to create a theocracy in America, not a democracy. I’m not opposed to prayer. This is not about praying at all. It’s about creating a theocracy in America.”
Marshall proposed the idea of having no prayer before board meetings. Bailey suggested opening meetings with a moment of silence.
“We ought just stand and take a moment of silence,” Bailey said. “It’s not a big thing. I think we’re making a political issue out of this.”
County Attorney Davida Martin declined to comment on why she wasn’t representing the county in the lawsuit.
“I cannot discuss with a third party, an outside party, a discussion I had with the board in closed session,” Martin said.
Commissioner Gloria Whisenhunt said she supports Johnson’s actions in defending the county’s policy on prayer before meetings, and believes the county will emerge victorious in Beaty’s courtroom.
“I think once the judge listens to the tape of our meetings and understands our policy, he’ll understand that we are inclusive and we don’t show partiality,” Whisenhunt said.
Parker offered tapes of Forsyth County Commission meetings recorded between May 29, 2007 and Dec.
15, 2008 as evidence that the county violated the First and Fourteenth Amendment rights of Joyner and Blackmon by “sponsoring and allowing sectarian prayer at its meetings,” according to court documents.
During oral arguments presented Oct. 14, Parker pointed out that of the 33 prayers delivered during the aformentioned time frame, 26 contained references to “Jesus, Jesus Christ, Christ, Savior or the Trinity.” Not one of the 33 prayers invoked a deity associated with any specific faith other than Christianity, Parker argued.
“The Fourth Circuit Court of Appeals has ruled that prayer must be nonsectarian,” Parker said. “You can’t refer to a deity such as ‘Jesus.’ The reason I use ‘Jesus’ is because that’s the only deity that’s been mentioned in prayers at Forsyth County Commissioners meetings. There’s never been another deity that’s been referred to.”
Parker originally filed the lawsuit on Joyner and Blackmon’s behalf in March 2007. Two months later, the board of commissioners adopted a written policy to cover invocations at meetings. No such policy existed prior to that time, according to court documents.
Under the board’s policy, the clerk maintains a database of church congregations and mails out invitation letters. Congregation leaders are asked to send a reply to the clerk and respondents are scheduled on a “first come, first served basis.”
Board policy specifies that the prayer cannot be used as an opportunity to convert others or disparage any faith or belief different from that of the speaker. Board policy also directs the clerk to make “every reasonable effort to ensure that a variety of eligible speakers are included for the board meetings.” Board policy also states that the clerk cannot review the content of any prayer prior to a meeting.
Joyner and Blackmon stated in affidavits that they attended the Dec. 17, 2007 board meeting where the Rev. Robert Hutchens delivered the invocation. Joyner and Blackmon claim that the Rev. Hutchens invoked the name, “the Lord Jesus Christ” in violation of the sectarian prayer rule. Blackmon also stated that she felt coerced to stand for the prayer, unwelcome as a non-Christian and coerced by her government into endorsing a Christian prayer.
Parker argued that invocation prayers at Forsyth County Commission meetings are government speech and are therefore subject to the First and Fourteenth Amendments. Johnson argued on behalf of the county that prayers are private speech. Judge Sharp applied the Fourth Circuit Court of Appeals four-factor test for determining when speech may be attributed to the government.
The factors include the central purpose of the program in which the speech is given; the degree of editorial control; the identity of the speaker; and whether the government bears ultimate responsibility for the content of the speech.
The court concluded that the invocation prayers at Forsyth County Commission meetings represents government speech, and the prayers at the board’s meetings during the specified timeframe displayed a preference for Christianity over other religions by the government.
Judge Sharp found that the county commission’s prayer violates the Establishment Clause of the Constitution and recommended Judge Beaty rule in favor of the plaintiffs. The Establishment Clause addresses the establishment of a national religion by Congress, or the preference of one religion over another.
Conrad said she strongly disagrees with Judge Sharp’s argument regarding the Establishment Clause.
“We’re not trying to convert everyone down there to a certain religion,” she said. “It’s just an opening prayer like Congress and other government bodies do. They wish the board well but they use their own personal language. They’re praying to their own particular deity. You don’t disparage another religion and don’t use it as an opportunity to convert other people.”
Conrad said the issue of prayers and invocations before county commissioners meetings could represent the tip of the iceberg.
“I think what they’re trying to do is stop all prayer,” Conrad said. “Eventually it will be taking ‘In God We Trust’ off the money. In my opinion, it’s taking away freedom of speech and freedom of religion — freedoms that have been in place in this country for 200 years.”
The legal wrangling over prayer before county commission meetings in Forsyth County may end up having little impact on longstanding practices by the county commission in neigh boring
Guilford County. Guilford County Attorney Mark Payne said Sharpe’s opinion emphasized that Forsyth County’s policy of inviting different houses of worship to give the invocation was a good one but in practice it has ended up being weighted towards one faith — Christianity.
“In Guilford County, I would say that we are fully compliant with federal laws and with the state law,” Payne said. “We do have opening prayers before our meetings, and they are representative of the community and show the diversity of the community.”
As an example, Payne said that four or five months ago, a rabbi gave the invocation before a Guilford County Commission meeting.
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Forsyth County Commissioner Beaufort Bailey (left) said he agrees with a judge’s recent ruling that sectarian prayer before the start of county commissioner meetings is unconstitutional.
(photo by Keith T. Barber).
