This column by ACRU Senior Legal Analyst Ken Klukowski was published January 17, 2012 on The Washington Examiner website.
Pastors and priests in five states cannot mention ‘Jesus’ more than once or twice if they pray in public at an official function after the U.S. Supreme Court stunned constitutional law experts earlier today by letting stand a lower court ruling.
‘Legislative prayer’ is what courts call the tradition of legislative bodies (Congress, state legislators, town councils, etc.) beginning their meetings with an invocation.
Last year, the U.S. Court of Appeals for the Fourth Circuit held that when pastors and priests offer such prayers, it’s okay to mention the name of Jesus Christ once or maybe twice.
But if Jesus’ name is mentioned frequently, or if the prayer includes statements of Christian beliefs (such as the forgiveness of sins, Jesus’ resurrection, or Jesus as the Son of God), then the prayer violates the Establishment Clause of the Constitution, and must be banned.
This was a 2-1 split decision written by Judge J. Harvie Wilkinson. Judge Paul Niemeyer wrote an outstanding dissent, showing how judicial censorship of clergy-led prayer goes to the heart of what the Establishment Clause was designed to prevent.
The Alliance Defense Fund (ADF) petitioned the Supreme Court for a writ of certiorari to take up this case and reverse the Fourth Circuit’s wrongheaded decision. Multiple states filed briefs supporting this petition, as did a group of U.S. congressmen.
The case had all the elements of being cert-worthy (i.e. deserving of the justices agreeing to decide the case). Yet in today’s orders, the Court denied the petition, thereby declining to review the case.
That means the Fourth Circuit’s decision is now the law of the land in the five states Virginia, West Virginia, Maryland, North Carolina, and South Carolina.
David Cortman, ADF’s lead counsel said,
“We are obviously disappointed that the Supreme Court did not agree to hear our case on behalf of the Forsyth County Commissioners and the local community.
“We continue to believe that the lower court’s decision requiring public officials to censor the prayers of private citizens is inconsistent with historical practice and constitutional requirements. ADF will continue to defend legislative prayer throughout the country until the Supreme Courts hears a case that clears up the confusion.”
Just last week, the Court handed down the most significant victory for religious liberty in decades, recognizing a ministerial exception to federal employment laws. Yet the Court today allows this Fourth Circuit decision stand, at least for now.
Other legislative prayer cases are in the federal court system, including another ADF case, Galloway v. Town of Greece, before the Second Circuit.
Hopefully the Supreme Court will take one of these cases soon and end this form of censorship of religious expression in the public square.