Clergy-led prayers at legislative sessions will continue inviting First Amendment litigation

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Jul 29, 2011 Clergy-led prayers at legislative sessions will continue inviting First Amendment litigation

The Supreme Court has allowed legislatures to invite clergy — at least if not discriminating among their religions — to open legislative sessions with prayers, but has tried to draw boundaries about the contents of those prayers in the process. Blackmon v. Osborne, ___ F.3d ___ (4th Cir., July 29, 2011). Ongoing litigation over such activities is inevitable, as various legislators test the limits of such appellate court rulings, and as opponents of such prayers seek to shrink the universe of permissible praying at legislative sessions.

A case in point is today’s Blackmon v. Osborne decision. Speaking for the 2-judge majority in Blackmon, Judge Wilkerson found the following legislative prayer activity unconstitutional:

On December 17, 2007, Janet Joyner and Constance Lynn Blackmon decided to attend a meeting of the Forsyth County Board of Commissioners. Like all public Board meetings, the gathering began with an invocation delivered by a local religious leader. And like almost every previous invocation, that prayer closed with the phrase, "For we do make this prayer in Your Son Jesus’ name, Amen." The December 17 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."

In vigorous dissent, Judge Niemeyer opened as follows:

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. The majority’s decree commands that every legislative prayer reference only "God" or some "nonsectarian 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 v. Chambers, 463 U.S. 783 (1983); and creates a circuit split, see Pelphrey v. Cobb County, Ga., 547 F.3d 1263 (11th Cir. 2008) (finding constitutional legislative prayers offered by "volunteer leaders of different religions, on a rotating basis," even though the prayers referenced Jesus; Allah; the God of Abraham, Isaac, and Jacob; Mohammed; and Heavenly Father). 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.

Judge Niemeyer closed as follows:

I respectfully submit that we must maintain a sacred respect of each religion, and when a group of citizens comes together, as does the Forsyth County Board of Commissioners, and manifests that sacred respect–allowing the prayers of each to be spoken in the religion’s own voice–we must be glad to let it be. The ruling today intermeddles most subjectively without a religiously sensitive or constitutionally compelled standard. This surely cannot be a law for mutual accommodation, and it surely is not required by the Establishment Clause.


Stay tuned to whether Blackmon proceeds to en banc review.


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