A recording of last week's 4th Circuit oral argument in Joyner v Forsyth County is now online (mp3 file).
The lawyer for the county, Mike Johnson, argued that the invocation policy – which invites clergy of all faiths to deliver opening prayers before council meetings on a first-come, first-serve basis – is acceptable, regardless of the sectarian content of the prayers, because it is completely neutral. He confirmed this view early on in questioning by Judge Harvie Wilkinson, who seemed concerned by the practical impact of that anything-goes reasoning. (My rough transcript)
Judge Wilkinson: If that's your view, that the policy of first-come, first-serve is all that's required, constitutionally, isn't that going to inevitably lead – in jurisdictions where there is a large predominance of one faith – to sectarian prayers at the opening of a public meeting advancing the tenets of one faith?….It seems to me a policy that's that sort of geared to advancing the religious faith of a majority of residents in a county, and so I question where that leaves members of religious minorities that come to a meeting where public business is going to be discussed and you hear something that's quite at odds with your own personal religious views and faith…. If your position is as you and I have agreed, do we not set up in this country a situation where you're almost bound to disadvantage a minority faith?
Johnson: So many ways to answer that question, your Honor. It's our position that you're not bound to disadvantage anyone when you have a completely open and equal invitation…If the effect is that particular members of the community, particular clergy, avail themselves of the open opportunity that's available to all…
Judge Wilkinson: …to deliver a sectarian prayer as long as the council has hands off the prayer, it's ok?
Johnson: That's right.
Later though, in questioning the plaintiff's attorney Kathleen Parker, Judge Wilkinson expressed reservations about invalidating an apparently neutral government policy:
Judge Wilkinson: If we strike down this policy.. you've concentrated on the effects of it. You say the effects of it are anything but neutral. But the terms of the policy are neutral. It's a first-come, first-serve policy, it's voluntary on the part of the prayer-givers, the audience is not coerced to participate in any fashion. So, the effects of the policy may not be neutral but the terms of the policy certainly are neutral. And if we strike down a policy whose terms are neutral do we go down the road of requiring an unacceptable involvement on the part of public officials in the content of prayer?
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Parker:…as your Honor said in Simpson, the prayer is what the citizens see and hear – not the policy, the prayer. So they go in for a meeting and they hear that prayer and they are so alienated that they decide never to go back, and that is exactly the evil the Establishment Clause [was intended to prevent.]Judge Wilkinson: …That doesn't necessarily mean that any mention of Jesus or Mohammed or the God of Abraham, Isaac and Jacob, sends the court pouncing down on the policy. There has to be some flexibility and practicality on this. You can't put yourself in a situation where any reference to a sectarian deity causes the courts to invalidate a whole policy. It has to be the cumulative effect of what is happening. It can't just be a stray reference or an outlier situation. We're trying to strike a balance here between not involving the courts and city councils in the content of prayers on the one hand, and on the other hand not just opening the gates to all kinds of sectarian prayers from members of the majority faith that makes persons such as your clients feel excluded from their own government and from participation in their own affairs. So, it can't be an absolute thing. It has to recognize that there are some very genuine competing interests here, doesn't it? I mean…you wouldn't be in court if there had been simply one reference to Jesus on one particular evening. That's not enough to strike the whole thing down, is it? What one minister says without any direction at all from council?
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Parker: I think a fair reading of Marsh says that even one would be a violation, but that's not the facts of this case.
After listening through the whole argument, I was a little disappointed that so much of the discussion centered on the question of diversity – how many of the Forsyth County prayers were offered by Christians, whether Universalists count as Christians, and so on – and so little on the question of sectarian prayer generally. The fact that the vast majority of the prayers turned out to be Christian, once this policy was put in place, is not the only problem. As Parker reminded the court at one point, quoting from one of its prior decisions, "sectarian prayer in itself advances religion." So, even if the sectarian prayers had been more diverse over time, that problem would remain. A neutral policy may sound fair, but it can lead to some highly non-neutral evenings.
I'm not much of a tea-leaf reader in these things, but from the questions and comments of the other judges on the panel, I'd say that whichever way Judge Wilkinson goes, so goes the decision. Stay tuned.
