Turner v. City Council of the City of Fredericksburg

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HASHMEL C. TURNER, JR., 

Plaintiff-Appellant,

v.

THE CITY COUNCIL OF THE CITY OF

FREDERICKSBURG, VIRGINIA; THOMAS

J. TOMZAK, in his official capacity

as Mayor of the City of  No. 06-1944

Fredericksburg, Virginia,

Defendants-Appellees.

AMERICAN CIVIL LIBERTIES UNION OF

VIRGINIA FOUNDATION,

Amicus Supporting Appellees.



Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, Chief District Judge.

(3:06-cv-00023-JRS)

Argued: March 19, 2008

Decided: July 23, 2008

Before Sandra Day O’CONNOR, Associate Justice (Retired),

Supreme Court of the United States, sitting by designation, and

MOTZ and SHEDD, Circuit Judges.

Affirmed by published opinion. Associate Justice O’Connor wrote the

opinion, in which Judge Motz and Judge Shedd joined.

2 TURNER v. CITY COUNCIL OF FREDERICKSBURG

COUNSEL

ARGUED: R. Johan Conrod, Jr., KAUFMAN & CANOLES, P.C.,

Norfolk, Virginia, for Appellant. Robert Martin Rolfe, HUNTON &

WILLIAMS, Richmond, Virginia, for Appellees. ON BRIEF: J.

Bradley Reaves, KAUFMAN & CANOLES, P.C., Norfolk, Virginia;

James J. Knicely, KNICELY & ASSOCIATES, P.C., Williamsburg,

Virginia, for Appellant. Maya M. Eckstein, Terence J. Rasmussen,

Thomas K. Johnstone, IV, HUNTON & WILLIAMS, Richmond, Vir-

ginia; Elliot M. Mincberg, Judith E. Schaeffer, PEOPLE FOR THE

AMERICAN WAY FOUNDATION, Washington, D.C., for Appel-

lees. Rebecca K. Glenberg, AMERICAN CIVIL LIBERTIES UNION

OF VIRGINIA FOUNDATION, INC., Richmond, Virginia, for

Amicus Supporting Appellees.

OPINION

O’CONNOR, Associate Justice (Retired):

Appellant Hashmel Turner claims that the Council for the City of

Fredericksburg, Virginia, violated his First Amendment rights when

it implemented a policy beginning in 2005 requiring that legislative

prayers be nondenominational. Because the prayers at issue here are

government speech, we hold that Fredericksburg’s prayer policy does

not violate Turner’s Free Speech and Free Exercise rights. Likewise,

the requirement that the prayers be nondenominational does not vio-

late the Establishment Clause.

I.

The Council of the City of Fredericksburg, Virginia ("the Council")

begins every meeting with a Call to Order, which consists of an open-

ing prayer offered by one of the Council’s elected members followed

by the Pledge of Allegiance. Only Council members are allowed to

offer the opening prayer, and the Council members rotate the Call to

Order duty. Until 2005, members of the Council were allowed to offer

denominational prayers.

TURNER v. CITY COUNCIL OF FREDERICKSBURG 3

Turner was first elected to the Council in 2002. He is an ordained

minister and a part-time pastor of the First Baptist Church of Love.

Turner’s religious beliefs require him to close his prayers in the name

of Jesus Christ. Turner’s prayers on behalf of the Council reflected

this practice.

In 2005, the American Civil Liberties Union threatened to file a

lawsuit if the Council’s practice of opening with sectarian prayers

continued. The City Attorney examined the relevant case law and

concluded that the safest course of action was to continue offering

prayers, but to offer nondenominational prayers which did not invoke

the name of Jesus Christ. The Council adopted their attorney’s sug-

gestion and promulgated a prayer policy on November 8, 2005. Tur-

ner abstained from voting in that decision.

On November 22, 2005, Turner’s name came to the front of the

prayer rotation. Knowing Turner’s beliefs on the matter, the Mayor

asked Turner if he planned to close his prayer in the name of Jesus

Christ, in violation of the newly adopted policy; Turner said that he

would. The Mayor refused to recognize Turner and called on another

Council member to deliver the opening prayer instead.

Turner filed this suit, claiming that the Council’s prayer policy was

an unconstitutional establishment of religion, and that it violated his

Free Exercise and Free Speech rights. The district court granted sum-

mary judgment to the Council, and this appeal followed.

II.

As a preliminary matter, we must decide whether the legislative

prayer at issue here is speech that must be attributed to the govern-

ment, or whether the Call to Order prayers were given in a personal

capacity.

The Fourth Circuit has adopted a four-factor test for determining

when speech can be attributed to the government. In order to deter-

mine whether the speech in question is government or private speech,

we consider:

4 TURNER v. CITY COUNCIL OF FREDERICKSBURG

(1) the central "purpose" of the program in which the speech

in question occurs; (2) the degree of "editorial control" exer-

cised by the government or private entities over the content

of the speech; (3) the identity of the "literal speaker"; and

(4) whether the government or the private entity bears the

"ultimate responsibility" for the content of the speech.

Sons of Confederate Veterans, Inc. v. Comm’r of Dep’t of Motor

Vehicles, 288 F.3d 610, 618 (2002), citing Wells v. City & County of

Denver, 257 F.3d 1132, 1141 (10th Cir. 2001). Applying these fac-

tors, we conclude that the legislative prayer at issue here is govern-

mental speech.

First, the purpose of the program suggests that the speech is gov-

ernmental in nature. The prayer is an official part of every Council

meeting. It is listed on the agenda, and is delivered as part of the

opening, along with the Pledge of Allegiance. The person giving the

prayer is called on by the Mayor. The prayers typically ask that Coun-

cil members be granted wisdom and guidance as they deliberate and

decide how best to govern the city. We conclude that the central pur-

pose of the Council meeting is to conduct the business of the govern-

ment, and the opening prayer is clearly serving a government purpose.

As to the second and third factors, the Council itself exercises sub-

stantial editorial control over the speech in question, as it has prohib-

ited the giving of a sectarian prayer. While Turner is the literal

speaker, he is allowed to speak only by virtue of his role as a Council

member. Council members are the only ones allowed to give the Call

to Order.

The only factor about which there is any question is whether the

government or the Council member who delivers the prayer bears the

ultimate responsibility for its content.

In the prayers Turner offered before the current prayer policy was

adopted, he prayed, "As we are about the business of this locality, we

ask Lord God, that you will cleanse our hearts and our minds that we

make the right decisions that’s best suited for this locality." JA 489.

TURNER v. CITY COUNCIL OF FREDERICKSBURG 5

It is true that Turner and the other Council members take some per-

sonal responsibility for their Call to Order prayers. But given the

focus of the prayers on government business at the opening of the

Council’s meetings, we agree with the District Court that the prayers

at issue are government speech.

Turner has not cited a single case in which a legislative prayer was

treated as individual or private speech. Indeed, the Fourth Circuit has

determined that more difficult cases than this one should be classified

as government speech. For instance, in Simpson v. Chesterfield

County Board of Supervisors, 404 F.3d 276 (4th Cir. 2005), the Board

of Supervisors invited religious leaders from congregations through-

out Chesterfield County to give prayers on a rotating basis. Id. at 279.

The identity of the speaker, and the responsibility for the speech, was,

in that case, less clearly attributable to the government than the

speech here, because the speakers there were not government offi-

cials. Simpson nonetheless held that "the speech . . . was government

speech." Id. at 288.

III.

Turner claims that, under the Establishment Clause, the govern-

ment may not dictate the content of official prayers. He points to Lee

v. Weisman, 505 U.S. 577 (1992), which held that a school principal,

who directed a rabbi to deliver a nonsectarian prayer, violated the

Establishment Clause. The Court explained that "[i]t is a cornerstone

principle of our Establishment Clause jurisprudence that ‘it is no part

of the business of government to compose official prayers for any

group of the American people to recite as a part of a religious pro-

gram carried on by government.’" Id. at 588 (quoting Engel v. Vitale,

370 U.S. 421, 425 (1962)). Thus, Turner says, the government cannot

require that nonsectarian prayers be given.

Turner’s argument misses the mark. As the Lee Court went on to

explain, the school’s direction to deliver a nonsectarian prayer was a

"good-faith attempt to ensure that the sectarianism which is so often

the flashpoint for religious animosity [was] removed from the gradua-

tion ceremony." Id. But the Establishment Clause question that was

raised was not whether the school had made a good-faith attempt to

accommodate other religions; instead, the question was "the legiti-

6 TURNER v. CITY COUNCIL OF FREDERICKSBURG

macy of its undertaking that enterprise at all when the object is to pro-

duce a prayer to be used in a formal religious exercise which students,

for all practical purposes, are obliged to attend." Id. at 589. We do not

read Lee as holding that a government cannot require legislative

prayers to be nonsectarian. Instead, Lee established that government

cannot compel students to participate in a religious exercise as part of

a school program.

The Supreme Court of the United States has treated legislative

prayer differently from prayer at school events: "[T]here can be no

doubt that the practice of opening legislative sessions with prayer has

become part of the fabric of our society. To invoke Divine guidance

on a public body entrusted with making the laws is not, in these cir-

cumstances, an ‘establishment’ of religion or a step toward establish-

ment.’" Marsh v. Chambers, 463 U.S. 783, 792 (1983). Opening

prayers need not serve a proselytizing function, and often are an "ac-

knowledgement of beliefs widely held among the people of this coun-

try." Id. So long as the prayer is not used to advance a particular

religion or to disparage another faith or belief, courts ought not to

"parse the content of a particular prayer." Id. at 795; see also Wynne

v. Town of Great Falls, 376 F.3d 292, 298 (4th Cir. 2004).

We need not decide whether the Establishment Clause compelled

the Council to adopt their legislative prayer policy, because the Estab-

lishment Clause does not absolutely dictate the form of legislative

prayer. In Marsh, the legislature employed a single chaplain and

printed the prayers he offered in prayerbooks at public expense. By

contrast, the legislature in Simpson allowed a diverse group of church

leaders from around the community to give prayers at open meetings.

Simpson, 404 F.3d at 279. Both varieties of legislative prayer were

found constitutional. The prayers in both cases shared a common

characteristic: they recognized the rich religious heritage of our coun-

try in a fashion that was designed to include members of the commu-

nity, rather than to proselytize.

The Council’s decision to provide only nonsectarian legislative

prayers places it squarely within the range of conduct permitted by

Marsh and Simpson. The restriction that prayers be nonsectarian in

nature is designed to make the prayers accessible to people who come

from a variety of backgrounds, not to exclude or disparage a particu-

TURNER v. CITY COUNCIL OF FREDERICKSBURG 7

lar faith. The Council’s decision to open its legislative meetings with

nondenominational prayers does not violate the Establishment Clause.

IV.

Appellant also argues that the prayer policy violates his Free Exer-

cise and First Amendment rights. As Simpson explained:

[T]his issue turns on the characterization of the invocation

as government speech. . . . The invocation is not intended

for the exchange of views or other public discourse. Nor is

it intended for the exercise of one’s religion. . . . The con-

text, and to a degree, the content of the invocation segment

is governed by established guidelines by which the [govern-

ment] may regulate the content of what is not expressed.

Simpson, 404 F.3d at 288 (internal citations omitted) (second omis-

sion in original); see also Rosenberger v. Rectors and Visitors of Uni-

versity of Virginia, 515 U.S. 819, 833 (1995) ("[W]e have permitted

the government to regulate the content of what is or is not expressed

when it is the speaker.").

Turner was not forced to offer a prayer that violated his deep-

ly-held religious beliefs. Instead, he was given the chance to pray on

behalf of the government. Turner was unwilling to do so in the man-

ner that the government had proscribed, but remains free to pray on

his own behalf, in nongovernmental endeavors, in the manner dictated

by his conscience.

His First Amendment and Free Exercise rights have not been vio-

lated.

For these reasons, the decision of the district court is

AFFIRMED.