Joyner v. Forsyth County
| Citation | 653 F.3d 341 |
| Decision Date | 29 July 2011 |
| Docket Number | No. 10–1232.,10–1232. |
| Parties | Janet JOYNER; Constance Lynn Blackmon, Plaintiffs–Appellees,andMauck Osborne, Plaintiff,v.FORSYTH COUNTY, NORTH CAROLINA, Defendant–Appellant.The Rutherford Institute; Justice and Freedom Fund; The Foundation for Moral Law; Independence Law Center; North Carolina Family Policy Council; Palmetto Family Council; The Family Foundation of Virginia; The Family Policy Council of West Virginia; The North Carolina Partnership for Religious Liberty; Retired Judges of America; The National Legal Foundation, Amici Supporting Appellant,Baptist Joint Committee for Religious Liberty; American Jewish Congress; Anti–Defamation League; Blue Mountain Lotus Society; Guru Gobind Singh Foundation; Hindu American Foundation; Sikh Council on Religion and Education, Amici Supporting Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
OPINION TEXT STARTS HERE
ARGUED: James Michael Johnson, Alliance Defense Fund, Shreveport, Louisiana, for Appellant. Katherine Lewis Parker, American Civil Liberties Union of North Carolina Legal Foundation, Raleigh, North Carolina, for Appellees. ON BRIEF: David A. Cortman, Alliance Defense Fund, Lawrenceville, Georgia; Bryce D. Neier, The Law Office of Bryce D. Neier, Fayetteville, North Carolina; David Gibbs, The Gibbs Law Firm, Seminole, Florida, for Appellant. Ayesha N. Khan, Americans United, Washington, D.C.; Daniel Mach, American Civil Liberties Union Foundation, Washington, D.C., for Appellees. John W. Whitehead, Douglas R. McKusick, The Rutherford Institute, Charlottesville, Virginia; James J. Knicely, Robert Luther III, Knicely & Associates, P.C., Williamsburg, Virginia, for The Rutherford Institute, Amicus Supporting Appellant. Deborah J. Dewart, Swansboro, North Carolina, for Justice and Freedom Fund, Amicus Supporting Appellant. Roy S. Moore, Benjamin D. DuPre, John A. Eidsmoe, Foundation for Moral Law, Montgomery, Alabama, for The Foundation for Moral Law, Amicus Supporting Appellant. Randall L. Wenger, Independence Law Center, Harrisburg, Pennsylvania; Scott W. Gaylord, Ph.D., Elon University Law School, Greensboro, North Carolina, for Independence Law Center, Amicus Supporting Appellant. Stuart D. Sloan, Franklin, North Carolina; Matthew G. Gerrald, Columbia, South Carolina; Timothy D. Savidge, Prosperity, South Carolina, for North Carolina Family Policy Council, Palmetto Family Council, The Family Foundation of Virginia, The Family Policy Council of West Virginia, and The North Carolina Partnership for Religious Liberty, Amici Supporting Appellant. Robert L. Hodges, Matthew D. Fender, McGuirewoods LLP, Richmond, Virginia, for Retired Judges of America, Amicus Supporting Appellant. Steven W. Fitschen, Virginia Beach, Virginia, for The National Legal Foundation, Amicus Supporting Appellant. Steven K. Hoffman, Emilie S. Kraft, James & Hoffman PC, Washington, D.C.; K. Hollyn Hollman, James T. Gibson, Baptist Joint Committee for Religious Liberty, Washington, D.C., for Baptist Joint Committee for Religious Liberty, Amicus Supporting Appellees. Evan M. Tager, Archis A. Parasharami, Elisa F. Kantor, Mayer Brown LLP, Washington, D.C., for American Jewish Congress, Anti–Defamation League, Blue Mountain Lotus Society, Guru Gobind Singh Foundation, Hindu American Foundation, and Sikh Council on Religion and Education, Amici Supporting Appellees.Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.Affirmed by published opinion. Judge WILKINSON wrote the majority opinion, in which Judge KEENAN joined. Judge NIEMEYER wrote a dissenting opinion.
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 response, Joyner and Blackmon filed suit against the county, alleging that the December 17 prayer represented one instance of the Board's broader practice of sponsoring sectarian opening prayers at its meetings. After conducting a thorough review of the factual record, the district court concluded that the Board's legislative prayer policy did in fact violate the Establishment Clause by advancing and endorsing Christianity to the exclusion of other faiths.
The district court's ruling accords with both Supreme Court precedent and our own. Those cases establish that in order to survive constitutional scrutiny, invocations must consist of the type of nonsectarian prayers that solemnize the legislative task and seek to unite rather than divide. Sectarian prayers must not serve as the gateway to citizen participation in the affairs of local government. To have them do so runs afoul of the promise of public neutrality among faiths that resides at the heart of the First Amendment's religion clauses.
The Forsyth County Board of Commissioners (the Board, for short) is the elected body that governs Forsyth County, North Carolina. The county has approximately 350,000 residents and encompasses the city of Winston–Salem. The Board's twice-monthly meetings are open to the public, and for years the Board has decided to start the meetings with a prayer and a recital of the Pledge of Allegiance.
Until 2007, the Board did not have a written policy regarding the prayers but followed a relatively routine practice. Using the Yellow Pages, internet research, and consultation with the local Chamber of Commerce, the clerk to the Board compiled and maintained the “Congregations List”—a database of all religious congregations with an established presence in the community. No eligible congregation was excluded, and any congregation could confirm its inclusion by writing to the clerk. Each November, the clerk would update the list and then mail an invitation to the “religious leader” of each congregation. The letter informed those individuals that they were eligible to deliver an invocation and could schedule an appointment on a first-come, first-serve basis. The letter then closed as follows:
This opportunity is voluntary, and you are free to offer the invocation according to the dictates of your own conscience. To maintain a spirit of respect and ecumenism, the Board requests only that the prayer opportunity not be exploited as an effort to convert others to the particular faith of the invocational speaker, nor to disparage any faith or belief different than that of the invocational speaker.
In order to ensure that a variety of religious leaders came forth, the Board decided not to schedule any leader for consecutive meetings or for more than two meetings in any calendar year.
Once a potential speaker accepted, the Board would add the invocation to the meeting agenda, often alongside the name of the individual giving the invocation, his congregation, and the location of his place of worship. Prior to the opening gavel that officially began the meeting, the Board Chair would introduce the speaker and invite those who wished to stand to do so. After the speaker took the podium, the commissioners (and most audience members) would stand, and the prayer would commence.
While the Board took a hands-off approach to the actual content of the prayers, that content is relevant here. As the district court found and as audio recordings confirm, the prayers frequently contained references to Jesus Christ; indeed, at least half of the prayers offered between January 2006 and February 2007 contained concluding phrases such as “We pray this all in the name under whom is all authority, the Lord Jesus Christ,” “[I]t's in Jesus' name that we pray[,] Amen,” and “We thank You, we praise You, and we give Your name glory, and we ask it all in Your Son Jesus' name.”
In March 2007, Joyner, Blackmon, and a third plaintiff (who is no longer part of the case) filed a lawsuit seeking declaratory and injunctive relief. Claiming to have attended or watched several Board meetings, the plaintiffs alleged that the Board, “through both its actions and inactions, is sponsoring sectarian opening prayers at [its] meetings.” They requested a judgment declaring that the Board's sponsorship of sectarian prayers violated the Establishment Clause along with an injunction preventing future sectarian prayers.
After that lawsuit was filed, the Board decided to formalize its legislative prayer policy. The text of the policy codified past practice, with a few minor variations. Under the written policy, the invocation would no longer be “listed or recognized as an agenda item for the meeting so that it may be clear the prayer is not considered a part of the public business.” The policy also stated that nobody “shall be required to participate in any prayer that is offered,” and that “[n]either the Board nor the Clerk shall engage in any prior inquiry, review of, or involvement in, the content of any prayer to be offered by an invocational speaker.” Finally, the Board clarified that the prayers were “not intended, and shall not be implemented or construed in any way, to affiliate the Board with, nor express the Board's preference for, any faith or religious denomination.” Instead, the stated goal of the policy was to “acknowledge and express the Board's respect for the diversity of religious denominations and faiths represented and practiced among the citizens of Forsyth County.”
Despite that language, the prayers repeatedly continued to reference specific tenets of Christianity. These were not isolated occurrences: between May 29, 2007 and December 15, 2008, almost four-fifths of the prayers referred to “Jesus,” “Jesus Christ,” “Christ,” or “Savior.” In...
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