In late July, the U. S. Fourth Circuit Court unanimously affirmed a district court decision in Turner v. City Council of the City of Fredericksburg, Virginia, ruling that the Constitution does not prevent a city council from requiring public prayers from council members to be "non-sectarian." The ruling disappointed Fredericksburg councilman and minister Hashmel Turner, who had sued to overturn an ordinance ordering any public prayers offered at Council sessions to mention only the name of God, but make no "sectarian" references to "Jesus", etc.
By long tradition, Council meetings usually included a prayer by a member. Selection of members for the duty was made in a regular rotation. Mr. Turner - also a Baptist minister - typically closed his prayers by invoking the name of Jesus. But in 2004 the ACLU of Virginia wrote to the Fredericksburg Council, threatening to sue the city if Mr. Turner did not cease mentioning "Jesus Christ" in his prayers. The ACLU demanded that prayers in the context of government activities be "non-sectarian" - a standard mentioned nowhere in the Constitution, but which has become a cause celebre for the ACLU.
In response to the ACLU's threat, the Fredericksburg Council passed the aforementioned ordinance. For most of the following year, Mr. Turner was passed over in the regular rotation of Council members selected to pray because he stated his intention to continue mentioning the name of Jesus Christ. Consequently he sued, in 2006, on grounds that the non-sectarian rule violated his constitutional rights to freedom of speech and the free exercise of his religion.
A federal court found against Mr. Turner, and his eventual appeal to the Fourth Circuit Court of Appeals resulted in the July ruling that also validated the city's ordinance. Former Supreme Court Justice Sandra Day O'Connor (she's baaack) wrote the seven-page opinion in the decision, which concluded that the city council's rule requiring "non-sectarian" prayers did not violate Rev. Turner's First Amendment rights. Mr. Turner has said he plans to appeal his case to the United States Supreme Court.
(Why Mrs. O'Connor was involved in the decision in any official capacity is not clear to this writer. It is evidently harder to get rid of a retired Supreme Court Justice than one might have thought. Why isn't the ACLU looking into that?)
In an analysis of the Fourth Circuit Court's decision, columnist Greg Jones concluded that former Justice O'Connor made the "right" decision for mostly the wrong reasons. (Readers may find Mr. Jones' analysis at http://morallaw.org/blog/?p=324 ) The bottom line was that Mr. Turner's Constitutional right to practice his religion was not infringed because he was not compelled to pray at Council meetings, nor was he enjoined from praying in the name of Jesus at any other time. Only at Council meetings could he not speak (i.e., pray) with complete freedom.
This was not seen as a violation of "free speech", since there are many other ways in which Council members may not speak freely during Council proceedings - prayer being only one of them. Speech in a restricted venue is not entirely unfettered. This is, essentially, the "reasonable man" principle: for instance, one cannot stand up and speak freely, as the spirit moves (as it were), from the congregation of a church, during services, and claim "free speech"; nor can one stand up in the audience, during a concert, and sing aloud without being escorted from the hall. (A "reasonable man" has no trouble seeing that these are "sensible" restrictions on free speech.)
Once upon a time in Virginia (and America), speaking freely of one's religion in governmental contexts was not considered unusual or controversial. But that was a time when most citizens professed at least nominal Christian faith, and the number of Muslims, Buddhists or Wickans in the country was either zero or very small. That time is past. This realization is hard on people who have clung to a conviction that America is a distinctly Christian country, and who want the old traditions to continue. We are still a people who believe in God - at least, when an enemy has done us harm and we are afraid - but acceptance of Christian Doctrine, including Jesus Christ as the Son of God, is no longer universal or even close to it.
That being said, I am not so sanguine as Mrs. O'Connor about the "reasonableness" of the ordinance in question. Her opinion seems too disingenuous by half. Religious speech is not just any speech, nor is it subject to a majority-approval test. I distantly recall a Supreme Court Justice thundering, "How do you read the Constitution on religion, sir? I read it, "no law!" Many Constitutional scholars believe there are no situations in which religious speech can legitimately be restricted. When I worked for a large technical company, management received complaints about an innocuous e-mail in which an employee asked colleagues to "pray for Joe" (who was seriously ill). The company's ethics committee overruled the complaints on grounds that the company had no authority to restrict religious speech in the workplace just because someone didn't like it.
In the context of waning cultural Christianity, the Fredericksburg City Council's ordinance is perhaps understandable, although not necessarily courageous. Local communities still do things in their own ways, and Fredericksburg - by all accounts - was having no difficulties with how its Council conducted its business. The Council's willingness to be bums-rushed into responding to the ACLU's threat of a lawsuit is unfortunate. The ACLU is not an arm of government, nor of the courts. It is a small, well-funded band of busybodies who think they have American culture on the run. And they are right. One of their current proclivities is to act as the National Prayer Police.
Somehow the idea has got traction in American culture that "offense" is the measure of all things. If a few people complain that some practice or behavior offends them, an immediate rush commences to change laws or make new ones. Communities, school principals and town governments are running scared from "the offended ones" (as we call the ACLU at our place).
A mere letter from the ACLU often pushes local governments into actions that voters would never countenance. In the Fredericksburg case, there was no need for the City Council to act in response to the ACLU letter. "Take your best shot" or "pardon me all to hell" (in the words of that noted theologian, John Wayne) would have been enough. Instead, the Council ran for cover from a possible lawsuit. They got one anyway, from Mr. Turner.
Whether Mr. Turner has a case is interesting but is not the only issue. There is the question of "what if?" Absent the regulation, would a court have "ordered" the Council to monitor and pre-approve prayers offered by its members at Council meetings? Very doubtful, because of Separation of Powers. Except for clear violations of the Constitution - e.g., contracts specifying slavery, compulsory practice (or prohibition) of a specific religion, voter-registration tests, etc. - courts let legislatures manage their own affairs. Courts don't do this out of charity or noblesse oblige, but because the Constitution demands it. Indeed, the ruling on Mr. Turner's suit demonstrates how reluctant courts are to touch local government practices with respect to religion. The ACLU is much more exercised about those matters than the courts because the courts know they lack authority to "order" legislative branches about unless a law is involved.
Interventions of one branch into the affairs of another branch are generally prohibited, except as enumerated in the Constitution: e.g., judicial review of laws; executive selection of judges; legislative confirmation of judges and executive branch cabinet officers; legislative impeachment and removal of judges and the executive for "high crimes" and malfeasance in office. Otherwise, each branch is on shaky ground when it interferes with another branch. The Supreme Court starts its proceedings with a prayer. One doubts that the Court would respond to a congressional law (or an ACLU letter) ordering that the prayers have a certain format - or that they be eliminated.
Mr. Bush caused a donnybrook with the Congress - while his own party was in the majority - when he allowed the FBI to raid the office of a congressman suspected of complicity in a crime. The action violated the Separation of Powers Doctrine. Likewise, congressional attempts to control the executive branch and its officials have been controversial. The Special Prosecutor law, for example - passed by a Democrat-controlled Congress to prosecute Executive Branch officials in a Republican administration - didn't smell nearly as good when a Republican Congress used it to go after officials of a Democratic administration. Suddenly, Democrats saw the light. (Either way, it was bad law.)
In recent years, some state courts have "ordered" legislatures to take certain actions. Those legislatures either pretended, or actually believed, that the rulings had force, but they truly do not. The Constitution empowers the courts to strike down laws deemed unconstitutional. But "ordering" legislatures to enact specific legislation is not among the courts' defined powers. A "reasonable man" can see why courts should not order legislatures to furnish every citizen with an annual income of $100,000, for example. It might not be as obvious that the courts cannot order redefinition of marriage, or other more worthy legislation, but the principle is the same.
The Fredericksburg Council allowed itself to be stampeded into giving the courts a platform for a ruling. The Council passed a law that the courts could legitimately review and either strike down or affirm. Had that law not been passed, the court might have tried to order such a law into being, but it is doubtful that this would have happened.
Legislatures will learn, to their pain, that the ACLU is not a useful formulator of policy, and that new laws do not solve everything. Sometimes the best solution is to do nothing. Had the Fredericksburg Council done that, fewer folks would be worried about the country's direction. Some Council members might have grown a backbone, too. This was (as General Longstreet once said of Gettysburg) "ground of no value".