Joyner v. Forsyth County, NC

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JANET JOYNER; CONSTANCE LYNN 

BLACKMON,

Plaintiffs-Appellees,

and

MAUCK OSBORNE,

Plaintiff,  No. 10-1232

v.

FORSYTH COUNTY, NORTH

CAROLINA,

Defendant-Appellant.



2 JOYNER v. FORSYTH COUNTY

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.



Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

James A. Beaty, Jr., Chief District Judge.

(1:07-cv-00243-JAB-PTS)

Argued: May 12, 2011

Decided: July 29, 2011

JOYNER v. FORSYTH COUNTY 3

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.

COUNSEL

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. Cort-

man, ALLIANCE DEFENSE FUND, Lawrenceville, Geor-

gia; Bryce D. Neier, THE LAW OFFICE OF BRYCE D.

NEIER, Fayetteville, North Carolina; David Gibbs, THE

GIBBS LAW FIRM, Seminole, Florida, for Appellant. Aye-

sha 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., Wil-

liamsburg, 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. Eids-

moe, FOUNDATION FOR MORAL LAW, Montgomery,

Alabama, for The Foundation for Moral Law, Amicus Sup-

porting 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 Sup-

4 JOYNER v. FORSYTH COUNTY

porting Appellant. Stuart D. Sloan, Franklin, North Carolina;

Matthew G. Gerrald, Columbia, South Carolina; Timothy D.

Savidge, Prosperity, South Carolina, for North Carolina Fam-

ily 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, Mat-

thew D. Fender, MCGUIREWOODS LLP, Richmond, Vir-

ginia, for Retired Judges of America, Amicus Supporting

Appellant. Steven W. Fitschen, Virginia Beach, Virginia, for

The National Legal Foundation, Amicus Supporting Appel-

lant. Steven K. Hoffman, Emilie S. Kraft, JAMES & HOFF-

MAN 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 Con-

gress, Anti-Defamation League, Blue Mountain Lotus Soci-

ety, Guru Gobind Singh Foundation, Hindu American

Foundation, and Sikh Council on Religion and Education,

Amici Supporting Appellees.

OPINION

WILKINSON, Circuit Judge:

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 reli-

gious 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 "Gos-

pel of the Lord Jesus Christ."

JOYNER v. FORSYTH COUNTY 5

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 sectar-

ian opening prayers at its meetings. After conducting a thor-

ough 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 Chris-

tianity 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.

I.

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 resi-

dents 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 regard-

ing 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 data-

base of all religious congregations with an established pres-

ence 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

6 JOYNER v. FORSYTH COUNTY

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 con-

secutive meetings or for more than two meetings in any calen-

dar 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[,]

JOYNER v. FORSYTH COUNTY 7

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 recog-

nized 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 denomina-

tion." Instead, the stated goal of the policy was to "acknowl-

edge 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 iso-

lated occurrences: between May 29, 2007 and December 15,

2008, almost four-fifths of the prayers referred to "Jesus,"

"Jesus Christ," "Christ," or "Savior." In particular, most of the

prayers closed by mentioning Jesus, using such phrases as

8 JOYNER v. FORSYTH COUNTY

"This we pray, in the gracious name of the Lord Jesus Christ,"

"[I]n Jesus’ name we pray," and "In the name of Jesus Christ,

our Savior." None of the prayers mentioned non-Christian

deities.

One of those prayers is particularly salient to this lawsuit.

On December 17, 2007, Joyner and Blackmon decided to

attend the Board meeting hoping to observe the proceedings

— and in Joyner’s case, to hear the Board’s discussion of an

agenda item and to comment during the public participation

period. As always, the meeting began with an invocation, this

time by a pastor from Winston-Salem. According to Black-

mon and Joyner, the Chair of the Board asked the audience to

stand for the prayer. At that point, the commissioners and

most of the audience stood and bowed their heads.

Before beginning the prayer, the pastor offered the follow-

ing salutation to the board:

Before we pray, I would like to say my appreciation

to the ones that serve here on the Board. I’m a life-

long resident of Forsyth County, grew up in Lewis-

ville, lived in Winston-Salem, and for the last two

years, I lived in Kernersville, and I appreciate your

service to me and also the stand the Board took as

a whole allowing me, a minister of the Gospel of the

Lord Jesus Christ, to be able to pray as the New Tes-

tament instructs. And I appreciate that.

The pastor then continued with the prayer itself:

May we pray. Heavenly Father, tonight we are so

grateful for the privilege to pray that is made possi-

ble by Your Son and his intercessory work on the

Cross of Calvary. And Lord, we think about even a

week from tomorrow, Lord, we’ll remember that

Virgin Birth, and how He was born to die. And

JOYNER v. FORSYTH COUNTY 9

we’re so grateful tonight that we can look in the

Bible and see how You instituted government.

The pastor then discussed the influence of religion in world

affairs, sought divine guidance for the Board, and closed with

the salutation, "For we do make this prayer in Your Son

Jesus’ name, Amen."

On Joyner and Blackmon’s account, the overall atmosphere

made them feel distinctly unwelcome and "coerced by [their]

government into endorsing a Christian prayer." Blackmon

claimed that she felt compelled to stand and bow her head

because of the Chair’s instruction to stand and because of the

audience’s response. Joyner offered a similar account, believ-

ing that if she had failed to comply, it would have "negatively

prejudice[d] consideration of [her] intended petition as a citi-

zen appearing for public comment." Both characterized the

prayer as sectarian, with Blackmon referring to it as including

a "one-minute sermon."

In response, Joyner and Blackmon amended their lawsuit.

Their new complaint requested similar relief to its predeces-

sor: a declaratory judgment that the Board’s "allowance and

sponsorship of sectarian prayers" at its meetings violates the

Constitution, and an injunction preventing the Board from

"knowingly, intentionally or negligently allowing sectarian

prayers . . . before, during or after" the meetings. The com-

plaint contained new factual allegations, as well: that the

December 17, 2007 prayer was "distinctly sectarian," that the

new policy had "ensure[d] that prayer-givers . . . are permitted

to give a sectarian prayer," and that the policy had actually

increased the percentage of sectarian prayers from half to just

under four-fifths of all prayers.

After both parties filed motions for summary judgment, the

magistrate judge concluded that the plaintiffs should prevail.

The court began by noting that both Supreme Court and

Fourth Circuit precedent prevent the government from

10 JOYNER v. FORSYTH COUNTY

exploiting prayer opportunities to affiliate the government

with a specific faith. And it acknowledged that the "Defen-

dant’s policy does many things right," such as "striv[ing] to

include a wide variety of speakers from diverse religious

faiths." But looking at the factual record, the magistrate judge

concluded that the prayers themselves pushed the policy

across the constitutional line. In the magistrate’s view, the

prayers occurring after the policy’s enactment "display[ed] a

preference for Christianity over other religions by the govern-

ment" and "affiliate[d] the Board with a specific faith or

belief," meaning that the prayers could not "be considered

non-sectarian or civil prayer."

In a brief order, the district court adopted the magistrate’s

recommendation. It conducted a de novo review of the factual

record and agreed that the policy "has resulted in

Government-sponsored prayers that advance a specific faith

or belief and have the effect of affiliating the Government

with that particular faith or belief." Accordingly, the district

court issued a declaratory judgment that the "invocation Pol-

icy, as implemented, violates the Establishment Clause of the

Constitution" and an injunction against the Board "continuing

the Policy as it is now implemented." This appeal followed.

II.

At its core, this is not a case about the Establishment

Clause in general, but about legislative prayer in particular.

This distinction is critical, for legislative prayer lies at the

heart of two intersecting realities.

A.

On the one hand, it is a historical fact that legislative prayer

"is deeply embedded in the history and tradition of this coun-

try." Marsh v. Chambers, 463 U.S. 783, 786 (1983). Indeed,

"[f]rom colonial times through the founding of the Republic

and ever since, the practice of legislative prayer has coexisted

JOYNER v. FORSYTH COUNTY 11

with the principles of disestablishment and religious free-

dom." Id.; see also Cnty. of Allegheny v. ACLU, 492 U.S. 573,

603 (1989) (recognizing the unique history of legislative

prayer). Taking heed of this basic reality, the Supreme Court

has acknowledged the legitimacy of legislative prayer on mul-

tiple occasions.

For example, in Marsh, the Court confronted the constitu-

tionality of the Nebraska Legislature’s decision to have a paid

chaplain offer a brief prayer before each legislative session.

See Marsh, 463 U.S. at 784-85. The Court engaged in a

lengthy historical analysis, noting that "the men who wrote

the First Amendment Religion Clauses did not view paid leg-

islative chaplains and opening prayers as a violation of that

Amendment, for the practice of opening sessions with prayer

has continued without interruption ever since that early ses-

sion of Congress." Id. at 788. The practice of legislative

prayer was similarly commonplace in the states. See id. at

788-89. Based on that history, the Court concluded that there

was "no real threat to the Establishment Clause arising from

a practice of prayer similar to that now challenged." Id. at

791.

While Marsh is the only Supreme Court case to address

directly the constitutionality of legislative prayer, the Court

has since reaffirmed its support for the practice while ruling

on the propriety of two allegedly unconstitutional holiday dis-

plays located on public property in Pittsburgh. See Allegheny,

492 U.S. 573. Though the Court ruled that one of those dis-

plays was unconstitutional, it was careful to reaffirm the sta-

tus of legislative prayer as one of our "accepted traditions

dating back to the Founding." Id. at 602 (quotation and cita-

tion omitted).

We have followed the Supreme Court’s guidance in repeat-

edly upholding the practice of legislative prayer. In Wynne v.

Town of Great Falls, 376 F.3d 292 (4th Cir. 2004), we con-

sidered the legislative prayer policy employed by the Town

12 JOYNER v. FORSYTH COUNTY

Council of Great Falls, South Carolina. In so doing, we

observed that "[p]ublic officials’ brief invocations of the

Almighty before engaging in public business have always, as

the Marsh Court so carefully explained, been part of our

Nation’s history." Wynne, 376 F.3d at 302. And while we

determined that the town council’s policy was unconstitu-

tional as implemented, that decision was by no means based

on a wholesale condemnation of legislative prayer. To the

contrary, we made quite clear that invocations were still per-

missible. See id. ("The Town Council of Great Falls remains

free to engage in . . . invocations prior to Council meetings.")

We drove this point home in Simpson v. Chesterfield

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

taking care to explain the numerous salutary benefits of invo-

cations. In Simpson, a citizen challenged the Chesterfield

County Board of Supervisors’ invocation practice, which

afforded religious leaders throughout the county an opportu-

nity to give a "non-sectarian" prayer at the start of board

meetings on a first-come, first-serve basis. Simpson, 404 F.3d

at 278-79. We rejected her challenge. Harkening back to

Marsh, we observed that "legislative invocations perform the

venerable function of seeking divine guidance for the legisla-

ture" and "constitute ‘a tolerable acknowledgment of beliefs

widely held among the people of this country.’" Id. at 282

(quoting Marsh, 463 U.S. at 792). See also Turner v. City

Council of the City of Fredericksburg, 534 F.3d 352, 356 (4th

Cir. 2008) ("The Council’s decision to open its legislative

meetings with nondenominational prayers does not violate the

Establishment Clause.").

In sum, invocations at the start of legislative sessions can

solemnize those occasions; encourage participants to act on

their noblest instincts; and foster the humility that recognition

of a higher hand in human affairs can bring. There is a clear

line of precedent not only upholding the practice of legislative

prayer, but acknowledging the ways in which it can bring

JOYNER v. FORSYTH COUNTY 13

together citizens of all backgrounds and encourage them to

participate in the workings of their government.

B.

At the same time, both the Supreme Court and this circuit

have been careful to place clear boundaries on invocations.

That is because prayer in governmental settings carries risks.

The proximity of prayer to official government business can

create an environment in which the government prefers — or

appears to prefer — particular sects or creeds at the expense

of others. Such preferences violate "[t]he clearest command of

the Establishment Clause": that "one religious denomination

cannot be officially preferred over another." Larson v.

Valente, 456 U.S. 228, 244 (1982). After all, "[w]hatever else

the Establishment Clause may mean . . . it certainly means at

the very least that government may not demonstrate a prefer-

ence for one particular sect or creed." Allegheny, 492 U.S. at

605. More broadly, while legislative prayer has the capacity

to solemnize the weighty task of governance and encourage

ecumenism among its participants, it also has the potential to

generate sectarian strife. Such conflict rends communities and

does violence to the pluralistic and inclusive values that are

a defining feature of American public life.

The cases thus seek to minimize these risks by requiring

legislative prayers to embrace a non-sectarian ideal. That

ideal is simply this: that those of different creeds are in the

end kindred spirits, united by a respect paid higher providence

and by a belief in the importance of religious faith. Yet an

ideal so much in evidence in our coinage, in the Pledge of

Allegiance, in our own "God save the United States and this

Honorable Court"—an ideal long thought to be both meaning-

ful and unifying—now strikes the dissent as unacceptably

bland. For the dissent astonishingly disparages this ideal, dis-

missing non-sectarian invocations as mere "civil nicet[ies]"

that treat prayer "agnostically." Post at 28. This view not only

14 JOYNER v. FORSYTH COUNTY

diminishes meaningful observances offered every day across

this country. It denies to invocations their inclusive aspect.

It was, in fact, this inclusive aspect that the Supreme Court

took care to emphasize. In Marsh, for example, the Court

noted that one of the reasons that the founders had no objec-

tion to legislative prayer was that the invocations common-

place at the time represented "conduct whose . . . effect . . .

harmonize[d] with the tenets of some or all religions." Marsh,

463 U.S. at 792 (quoting McGowan v. Maryland, 366 U.S.

420, 442 (1961)). Nebraska’s invocations fell within that tra-

dition, going so far as to remove "all references to Christ after

a 1980 complaint from a Jewish legislator," id. at 793 n.14,

in order to ensure that the prayers represented a "tolerable

acknowledgement of beliefs widely held among the people of

this country," id. at 792. These efforts at ecumenism were

essential to the Court’s holding: it concluded that the prayer

policy was constitutional because there was "no indication

that [Nebraska’s] prayer opportunity ha[d] been exploited to

proselytize or advance any one, or to disparage any other,

faith or belief." Id. at 794-95. Indeed, while the Court noted

that "[t]he content of the prayer[s] is not of concern to

judges," id. at 794, it adopted such a hands-off approach only

once it was satisfied that Nebraska’s prayers did not "prosely-

tize or advance" a particular creed, id.

Allegheny underscored the point, clarifying that "[t]he leg-

islative prayers involved in Marsh did not violate [the Estab-

lishment Clause] because the particular chaplain had

‘removed all references to Christ.’" Allegheny, 492 U.S. at

603 (quoting Marsh, 463 U.S. at 793 n.14) (emphasis added).

As the Court observed, Marsh "recognized that not even the

‘unique history’ of legislative prayer can justify contemporary

legislative prayers that have the effect of affiliating the gov-

ernment with any one specific faith or belief." Id. (quoting

Marsh, 463 U.S. at 791) (citation omitted). Moreover, the

Court took pains to distinguish between the constitutionality

of "a specifically Christian symbol, like a creche, and more

JOYNER v. FORSYTH COUNTY 15

general religious references, like the legislative prayers in

Marsh." Id.

Our cases have hewed to this approach, approving legisla-

tive prayer only when it is nonsectarian in both policy and

practice. In Wynne, the town council had adopted an allegedly

neutral prayer policy but had nevertheless commenced every

meeting with opening prayers that expressly and repeatedly

referred to Jesus Christ. See Wynne, 376 F.3d at 295, 296 n.2.

Reading Marsh and Allegheny to "teach that a legislative body

cannot, consistent with the Establishment Clause, ‘exploit’

this prayer opportunity to ‘affiliate’ the Government with one

specific faith or belief in preference to others," we struck

down the policy. Id. at 298. The basis for our decision was

straightforward: unlike in Marsh, where "the chaplain had

affirmatively ‘removed all references to Christ,’" id. (quoting

Marsh, 463 U.S. at 793 n.14), the prayers in Wynne "‘fre-

quently’ contained references to ‘Jesus Christ,’ and thus pro-

moted one religion over all others, dividing the Town’s

citizens along denominational lines," id. at 298-99. The

prayers thus ran afoul of Marsh’s proscription of prayers that

"advance any one . . . faith or belief." Id. at 300 (quoting

Marsh, 463 U.S. at 794-95). We found unpersuasive the coun-

cil’s arguments that its references to Jesus Christ fell within

"Marsh’s approval of a prayer ‘in the Judeo-Christian tradi-

tion,’" id. at 299 (quoting Marsh, 463 U.S. at 793), for the

prayers referenced Christ — "a deity in whose divinity only

those of the Christian faith believe," id. at 300.

We reaffirmed that basic principle just one year later in

Simpson. The policy at issue there explicitly required non-

sectarian prayers. It mandated that each "invocation must be

non-sectarian with elements of the American civil religion

and must not be used to proselytize or advance any one faith

or belief or to disparage any other faith or belief." Simpson,

404 F.3d at 278. We upheld the policy precisely because the

prayers were nondenominational. We noted that unlike in

Wynne, where the "sectarian references in invocations were

16 JOYNER v. FORSYTH COUNTY

far more than occasional or incidental," id. at 283, the board

in Simpson had "aspired to non-sectarianism and requested

that invocations refrain from using Christ’s name or, for that

matter, any denominational appeal," id. at 284. Indeed, the

board’s policy in action had resulted in "a wide variety of

prayers" that "described divinity in wide and embracive

terms," displaying "ecumenism . . . consonant with our char-

acter both as a nation of faith and as a country of free reli-

gious exercise and broad religious tolerance." Id.; see also

Turner, 534 F.3d at 356 ("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-

lar faith.").

The case law thus sets out clear boundaries. As amicus

Baptist Joint Committee for Religious Liberty puts it, "this

[c]ourt’s legislative prayer decisions have recognized that the

exception created by Marsh is limited to the sort of nonsectar-

ian legislative prayer that solemnizes the proceedings of legis-

lative bodies without advancing or disparaging a particular

faith." Amicus Br. Baptist Joint Comm. for Religious Liberty

13. Put differently, legislative prayer must strive to be nonde-

nominational so long as that is reasonably possible — it

should send a signal of welcome rather than exclusion. It

should not reject the tenets of other faiths in favor of just one.

Infrequent references to specific deities, standing alone, do

not suffice to make out a constitutional case. But legislative

prayers that go further — prayers in a particular venue that

repeatedly suggest the government has put its weight behind

a particular faith — transgress the boundaries of the Estab-

lishment Clause. Faith is as deeply important as it is deeply

personal, and the government should not appear to suggest

that some faiths have it wrong and others got it right.

JOYNER v. FORSYTH COUNTY 17

III.

Taken together, the principles set forth by the Supreme

Court in Marsh and Allegheny and by this circuit in Wynne

and Simpson establish that the Board’s policy, as imple-

mented, cannot withstand scrutiny. The December 17, 2007

prayer — the prayer that led to the plaintiffs’ amended com-

plaint — clearly crossed the constitutional line. In Wynne, we

concluded that the town council’s prayers "clearly

‘advance[d]’ one faith, Christianity, in preference to others, in

a manner decidedly inconsistent with Marsh," Wynne, 376

F.3d at 301, because they ended with a solitary reference to

Jesus Christ. The prayer here went further. It discussed spe-

cific tenets of the Christian religion, from the "Cross of Cal-

vary" to the "Virgin Birth" to the "Gospel of the Lord Jesus

Christ." The December 17 invocation thus "engage[d], as part

of public business and for the citizenry as a whole, in prayers

that contain[ed] explicit references to a deity in whose divin-

ity only those of one faith believe." Wynne, 376 F.3d at 301.

Nor was the December 17 prayer the exception, rather than

the rule, as our friend in dissent suggests. Post at 39. Decem-

ber 17 was of course the day Joyner and Blackmon chose to

attend a Board meeting and heard the sectarian opening

prayer. But the day was hardly unusual. As the magistrate

judge found, "[t]he undisputed record shows that the prayers

delivered at the outset of Board meetings from May 29, 2007

through December 15, 2008 referred to Jesus, Jesus Christ,

Christ, or Savior with overwhelming frequency." Almost

four-fifths of the prayers contained such references. The

prayers closed — like the prayers in Wynne — with invoca-

tions to "the gracious name of the Lord Jesus Christ," with

references to "the merits of Jesus Christ, Thy Son and our

Savior," and with reminders that the prayers were "[i]n the

blessed name of Jesus." See Wynne, 376 F.3d at 294 (prayers

closed with "In Christ’s name we pray"). The prayers before

the policy likewise featured a substantial number of sectarian

references.

18 JOYNER v. FORSYTH COUNTY

Moreover, it is not the case, as the dissent suggests, that the

prayers "were largely generic petitions to a Divine Being to

bless the legislative body and request that it be guided to act

wisely and justly in the interest of the citizens." Post at 37. If

that were true, this case would be quite different. But here

there were many prayers that not only invoked Jesus’ name

throughout, see, e.g., February 25, 2008 (beginning, "Father

. . . we thank you for your son Jesus Christ our redeemer, we

thank you for the holy spirit who is our guidance and our

counselor"); but also that both before and after the policy

invoked specific tenets and articles of faith of Christianity,

see, e.g., November 10, 2008 (opening with thanks to God

"for the Lord Jesus Christ, the one that loved us and gave

himself for us at Calvary"); February 12, 2007 (praying "oh

Lord, our Lord, we thank you for your son Jesus who died on

Calvary that we might have a life and have it more abun-

dantly"). Taken as a whole, it is clear that the prayers offered

under the Board’s policy did not "evoke common and inclu-

sive themes and forswear . . . the forbidding character of sec-

tarian invocations." Simpson, 404 F.3d at 287. Wynne and

Simpson set forth the constitutional line, and these prayers

crossed it.

IV.

The Board makes a number of arguments in defense of its

policy. We shall address them in turn.

A.

First, the Board argues that we should decline to apply

Wynne and Simpson. In its view, Wynne does not control this

case because the prayers there were delivered by members of

the town council. According to the Board, this factual distinc-

tion is dispositive, for while prayers delivered by government

officials carry an "obvious and inherent risk" of affiliation,

prayers delivered by "a wide pool of volunteer, self-selected

citizens" will not show "the government’s allegiance to a par-

JOYNER v. FORSYTH COUNTY 19

ticular sect or creed." Appellant’s Br. at 22 (quotations and

citations omitted). Similarly, the Board argues that Simpson is

factually distinguishable because the county board there

decided to artificially narrow the group of eligible religious

leaders to "representatives of Judeo-Christian or monotheistic

religions." Id. at 23. While safeguards like nonsectarian mes-

sages and wide-ranging religious appeals were necessary in

the presence of such editorial control, the Board argues that

they are not required where, as here, the policy is "even more

inclusive and completely unlimited." Id. at 23-24.

These arguments miss the forest for the trees. With respect

to Wynne, the Board is right to observe that the prayers were

delivered by members of the town council. See Wynne, 376

F.3d at 294. But that fact was not dispositive. It was the gov-

ernmental setting for the delivery of sectarian prayers that

courted constitutional difficulty, not those who actually gave

the invocation. Wynne rested on two pillars: the Supreme

Court’s opinion in Marsh, which flatly declared that legisla-

tive prayer cannot "proselytize or advance any one . . . faith

or belief," id. at 300 (quoting Marsh, 463 U.S. at 794-95), and

the Court’s subsequent clarification that the prayers in Marsh

were constitutional "because the particular chaplain had

removed all references to Christ," id. at 299 (quoting Alle-

gheny, 492 U.S. at 603). Those principles apply with equal

force here. And lest there be any doubt, we applied the same

type of analysis in Wynne to the policy in Simpson, see Simp-

son, 404 F.3d at 283-84, which featured prayers delivered by

local clergy on a first-come, first-serve basis, see id. at 279.

The Board’s arguments regarding Simpson are equally

unpersuasive. Once again, the important factor was the non-

sectarian nature of the prayer, not the identity of the particular

speaker. While the Board contends that Simpson’s discussion

of the non-sectarian nature of the prayers was due to the

county board’s decision to "specifically den[y] the intention

to create an open forum for private speakers, and instead

maintain[ ] a degree of ‘content-control’ over what was said

20 JOYNER v. FORSYTH COUNTY

by the guests," Appellant’s Br. at 23 (citation omitted), that

fact was not central to Simpson’s holding in any way. Indeed,

we never once mentioned that fact in analyzing whether the

prayers met constitutional muster. See Simpson, 404 F.3d at

282-84. To the contrary, we applauded Chesterfield County

for its "wide variety of prayers" and upheld those prayers

because Chesterfield "aspired to non-sectarianism and

requested that invocations refrain from using Christ’s name,

or, for that matter, any denominational appeal." Id. at 284.

While no two cases are exactly alike, the Board has given us

no convincing reason to depart from the holdings of Wynne

and Simpson.

B.

Next, the Board argues that the district court misinterpreted

Marsh, Wynne, and Simpson in deciding to "parse[ ] the con-

tent of particular prayers," Reply Br. at 23, and "impose a

blanket censor upon prayer content," Appellant’s Br. at 27. In

its view, "various other courts have all interpreted this Cir-

cuit’s precedents very differently than the District Court

below," and the district court erred in "finding that the inclu-

sion of sectarian references by guest invocation speakers in

Forsyth County rendered the Board’s neutral invocations pol-

icy unconstitutional." Id. at 30.

Likewise, the dissent claims that our holding requires "judi-

cial bodies to evaluate and parse particular religious prayers."

Post at 28. This claim is ironic in view of the fact that the dis-

sent engages in what can only be described as an extensive

evaluative exercise designed to prove — against all evidence

in the record — that the prayers in question were of a generic

or nonsectarian character. We do not fault the dissent for

undertaking its review, but only for attempting to decry that

in which it is fully engaged. See post at 37-38.

It is true that Marsh stated that courts should not "parse the

content of a particular prayer." Marsh, 463 U.S. at 795. This

JOYNER v. FORSYTH COUNTY 21

makes perfect sense. As a practical matter, courts should not

be in the business of policing prayers for the occasional sec-

tarian reference — that carries things too far. But the dissent

gives the impression that virtually any review by the majority

of the invocations under challenge would constitute imper-

missible "parsing." Quite simply, this stark approach leaves

the court without the ability to decide the case, by barring any

substantive consideration of the very practice under challenge.

It is to say the least an odd view of the judicial function that

denies courts the right to review the practice at issue. For to

exercise no review at all — to shut our eyes to patterns of sec-

tarian prayer in public forums — is to surrender the essence

of the Establishment Clause and allow government to throw

its weight behind a particular faith. Marsh did not counte-

nance any such idea.

In fact, the Marsh Court only endorsed such a hands-off

approach in situations where "there is no indication that the

prayer opportunity has been exploited to proselytize or

advance any one, or to disparage any other, faith or belief."

Id. at 794-95. In other words, courts need to assure them-

selves that legislative prayer opportunities are not being

exploited before they abdicate all constitutional scrutiny. The

district and magistrate judges did just that by following prece-

dent and making the determination that Marsh and this Cir-

cuit’s own decisions require.

That is precisely the approach we applied in Wynne. Rather

than "parsing" the details of a particular prayer, we looked at

the district court’s factual findings about the frequency with

which the council "invoked ‘Jesus,’ ‘Jesus Christ,’ ‘Christ,’ or

‘Savior’" in determining whether the prayers actually did

proselytize or advance a particular sect. Wynne, 376 F.3d at

298 n.4. We took the same approach in Simpson as well, tak-

ing note of the "wide variety of prayers" and their "non-

sectarian[ ]" nature. Simpson, 404 F.3d at 284. The district

court here followed suit, relying on the magistrate’s findings

about the "overwhelming frequency" of references to "Jesus,

22 JOYNER v. FORSYTH COUNTY

Jesus Christ, Christ, or Savior" in determining that the prayers

did advance one particular faith.

Other circuits have adopted a similar perspective. For

example, in Hinrichs v. Bosma, 440 F.3d 393 (7th Cir. 2006),

the Seventh Circuit declined to stay the district court’s ruling

that the Indiana House of Representatives’ legislative prayer

policy was unconstitutional. See Hinrichs, 440 F.3d at 395.

Like the Forsyth County Board, the Indiana House invited

clergy from all over the state to issue a prayer before each leg-

islative session and encouraged the clerics to "strive for an

ecumenical prayer." Id. Nevertheless, many of the prayers

featured "supplications to Christ": they were "given ‘in

Christ’s name,’ ‘through [Y]our Son Jesus Christ,’ [and] ‘In

the Strong name of Jesus our Savior.’" Id. In concluding that

a stay would be improper, the Seventh Circuit observed that

the cases squarely confronting the constitutionality of "sectar-

ian legislative prayer . . . have concluded that Marsh prohibits

the practice." Id. at 399.* It also noted, as we do, that the

Supreme Court’s opinion in Allegheny "read Marsh as pre-

cluding sectarian prayer." Id.; see also Snyder v. Murray City

Corp., 159 F.3d 1227, 1234 (10th Cir. 1998) ("Thus, the kind

of legislative prayer that will run afoul of the Constitution is

one that proselytizes a particular religious tenet or belief, or

that aggressively advocates a specific religious creed, or that

derogates another religious faith or doctrine.").

The Board, however, suggests that the Eleventh Circuit’s

opinion in Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir.

2008) compels a different result. In Pelphrey, the court upheld

a legislative prayer policy adopted by two county commis-

sions that allowed "volunteer leaders of different religions, on

a rotating basis, to offer invocations with a variety of religious

expressions." Pelphrey, 547 F.3d at 1266. While the majority

*In a later opinion, the court concluded that the appellants lacked stand-

ing. See Hinrichs v. Speaker of the House of Representatives of the Ind.

Gen. Assembly, 506 F.3d 584, 585 (7th Cir. 2007).

JOYNER v. FORSYTH COUNTY 23

of prayer-givers were Christian, leaders of all faiths had come

forth. See id. at 1277. The prayers themselves, in turn, had at

times included "ordinarily . . . brief" sectarian terms, such as

"references to ‘Jesus,’ ‘Allah,’ ‘God of Abraham, Isaac, and

Jacob,’ ‘Mohammed,’ and ‘Heavenly Father.’" Id. at 1266.

Based on these facts, the Eleventh Circuit concluded that

there was no need to "evaluate the content of the prayers"

because "the prayers of the County Commission were not

exploited to advance one faith or belief." Id. at 1278. The

Board argues that we should affirm its policy by analogy to

Pelphrey, drawing from a sentence in the opinion stating that

"Allegheny does not require that legislative prayer conform to

the model in Marsh." Appellant’s Br. at 29 (quoting Pelphrey,

547 F.3d at 1271-72).

But Pelphrey’s ruling does not provide the support the

Board claims. In upholding the policy in Pelphrey, the Elev-

enth Circuit principally relied on the fact that "the prayers,

taken as a whole, did not advance any particular faith." Pel-

phrey, 547 F.3d at 1278. In other words, the Pelphrey court

adopted the same approach we did in Wynne and Simpson: it

determined as a threshold matter whether the invocations

exploited the opportunity for legislative prayer. Indeed, the

Eleventh Circuit made this point itself, observing that the

"Fourth Circuit read[s] Marsh[ ] as we do." Id. at 1273. It fur-

ther noted that Wynne and Simpson had likewise focused their

analysis on the threshold inquiry of whether or not the prayer

opportunity had "been exploited to proselytize or advance" a

particular faith. Id. at 1273 (quoting Marsh, 463 U.S. at 794-

95).

Such advancement did not take place in Pelphrey, where

the "diverse references in the prayers, viewed cumulatively,

did not advance a single faith." Id. at 1277. But just such an

advancement has taken place here. This policy was not, as the

dissent would have it, "a pluralistic celebration of prayer,"

post at 48, but an advancement of one religion. In practice, the

Board’s policy resulted in a greater proliferation of sectarian

24 JOYNER v. FORSYTH COUNTY

prayer. Almost four-fifths of the prayers delivered after the

adoption of the policy referenced Jesus Christ. None of the

prayers mentioned any other deity. And at no time after the

adoption of the policy did a non-Christian religious leader

come forth to give a prayer. The record thus reflects that the

prayers here, taken as a whole, "advance[d one] single faith"

to the exclusion of all others. Pelphrey, 547 F.3d at 1277.

C.

Finally, the Board argues that its policy should pass muster

because it is a neutral policy under which "all views and phi-

losophies are equally welcomed." Appellant’s Br. at 26. In its

estimation, it is "difficult, if not impossible, to conceive of a

more fair, neutral or inclusive invocation policy." Id. at 27. In

the Board’s view, the sectarian nature of the prayer here is

simply a function of the "religious demographics of the com-

munities" in Forsyth County. Reply Br. at 24. Because the

Board "showed no favoritism or preference at any time

between religious faiths," its policy must be upheld. Appel-

lant’s Br. at 27.

The Board is correct to observe that its policy is neutral. On

its face, the policy states that it is "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." And we agree with the magistrate

judge that the policy "does many things right," such as "striv-

[ing] to include a wide variety of speakers from diverse reli-

gious faiths" and encouraging potential prayer leaders not to

disparage other faiths.

But the policy, as implemented, is an altogether different

matter. It is not enough to contend, as the dissent does, that

the policy was "neutral and proactively inclusive," post at 41,

when the County was not in any way proactive in discourag-

ing sectarian prayer in public settings. Unlike in Simpson, the

Board’s policy did not require that invocations be "non-

JOYNER v. FORSYTH COUNTY 25

sectarian" and avoid "advanc[ing] any one faith or belief."

Simpson, 404 F.3d at 278. Moreover, while the Board’s policy

itself states that it is "not intended . . . to affiliate the Board

with, nor express the Board’s preference for, any faith or reli-

gious denomination," the letter it sends to the religious leaders

actually giving the prayers sends a different message. The let-

ter merely instructs them that the prayer opportunity should

"not be exploited as an effort to convert others to the particu-

lar faith of the invocational speaker, nor to disparage any faith

or belief different than that of the invocational speaker." In

other words, the letter focuses on only one part of the Marsh

test — proselytizing — and contains virtually no language

discouraging leaders from advancing their own faith. See

Wynne, 376 F.3d at 300 ("‘[P]roselytize’ and ‘advance’ have

different meanings and denote different activities.").

On a broader level, and more importantly, citizens attend-

ing Board meetings hear the prayers, not the policy. What this

means is that we cannot turn a blind eye to the practical

effects of the invocations at issue here. The dissent suggests

that the "frequency of Christian prayer" was merely the "prod-

uct of demographics," post at 42, and the County "could not

control whether the population was religious," id. What the

dissent offers as a defense of the policy, however, is one of

the problems with it. Take-all-comers policies that do not dis-

courage sectarian prayer will inevitably favor the majoritarian

faith in the community at the expense of religious minorities

living therein. This effect creates real burdens on citizens —

particularly those who attend meetings only sporadically —

for they will have to listen to someone professing religious

beliefs that they do not themselves hold as a condition of

attendance and participation. "To . . . Jewish, Muslim, Bahá’i,

Hindu, or Buddhist citizens[, ]a request to recognize the

supremacy of Jesus Christ and to participate in a civic func-

tion sanctified in his name is a wrenching burden." See

Amicus Br. of American Jewish Congress et al. 8. Such bur-

dens run counter to the essential promise of the Establishment

Clause. See Larson, 456 U.S. at 244.

26 JOYNER v. FORSYTH COUNTY

This is not to say that the Board must abandon the practice

of legislative prayer. Nor do we wish to set forth some sort

of template for an ideal legislative prayer policy. After all, as

we recognized in Simpson, "too much judicial fine-tuning of

legislative prayer policies risks unwarranted interference in

the internal operations of a coordinate branch." Simpson, 404

F.3d at 286-87. The bar for Forsyth County is hardly a high

one. Public institutions throughout this country manage to

regularly commence proceedings with invocations that pro-

vide all the salutary benefits of legislative prayer without the

divisive drawbacks of sectarianism. See id. at 287 (describing

how Chesterfield County’s invocations sought "guidance that

is not the property of any sect"). And religious leaders

throughout this country have offered moving prayers on mul-

titudinous occasions that have managed not to hurt the adher-

ents of different faiths. In the end, the constitutional standard

asks of the County no more than what numerous public and

governmental entities already meet. Indeed, some of the

prayers offered in this very case — albeit a minority —

plainly met it.

As it stands now, however, the Board’s policy falls short.

It resulted in sectarian invocations meeting after meeting that

advanced Christianity and that made at least two citizens feel

uncomfortable, unwelcome, and unwilling to participate in the

public affairs of Forsyth County. To be sure, citizens in a

robust democracy should expect to hear all manner of things

that they do not like. But the First Amendment teaches that

religious faith stands on a different footing from other forms

of speech and observance. Because religious belief is so inti-

mate and so central to our being, government advancement

and effective endorsement of one faith carries a particular

sting for citizens who hold devoutly to another. This is pre-

cisely the opposite of what legislative invocations should

bring about. In other words, whatever the Board’s intentions,

its policy, as implemented, has led to exactly the kind of "di-

visiveness the Establishment Clause seeks rightly to avoid."

Id. at 284.

JOYNER v. FORSYTH COUNTY 27

At no place does the dissent appreciate the impact of its

view upon adherents of minority faiths who hear public meet-

ings open with invocations given in the name of a faith to

which they do not subscribe. By accusing the majority of

"bowing . . . to universal inoffensiveness," post at 49, the dis-

sent appears to dismiss Joyner’s and Blackmon’s sensitivities

as essentially of no moment. This is not right. While it is true

that plaintiffs were not coerced, they claim pressure to stand

and bow their heads along with the rest or risk having their

civic participation correspondingly devalued. And these plain-

tiffs are not so different from other citizens who may feel in

some way marginalized on account of their religious beliefs

and who decline to risk the further ostracism that may ensue

from bringing their case to court or who simply lack the

resources to do so. While the dissent insists that "[t]he Estab-

lishment Clause does not protect against feelings of ostracism

or marginalization," id. at 39, it surely is solicitous of harms

visited upon citizens by government’s advancement of a par-

ticular faith. We may not know what subtle or not-so-subtle

pressures non-Christian citizens of the County felt to partici-

pate in the sectarian exercise. We do know, however, that citi-

zens should come to public meetings confident in the

assurance that government plays no favorites in matters of

faith but welcomes the participation of all.

V.

George Washington once observed that "[r]eligious contro-

versies are always productive of more acrimony and irrecon-

cilable hatreds than those which spring from any other cause."

Letter from George Washington to Edward Newenham (June

22, 1792). As our nation becomes more diverse, so also will

our faiths. To plant sectarian prayers at the heart of local gov-

ernment is a prescription for religious discord. In churches,

homes, and private settings beyond number, citizens practice

diverse faiths that lift and nurture both personal and civic life.

But in their public pursuits, Americans respect the manifold

beliefs of fellow citizens by abjuring sectarianism and

28 JOYNER v. FORSYTH COUNTY

embracing more inclusive themes. That the Board and reli-

gious leaders in Forsyth County hold steadfast to their faith is

certainly no cause for condemnation. But where prayer in

public fora is concerned, the deep beliefs of the speaker afford

only more reason to respect the profound convictions of the

listener. Free religious exercise posits broad religious toler-

ance. The policy here, as implemented, upsets the careful bal-

ance the First Amendment seeks to bring about.

The judgment of the district court is hereby

AFFIRMED.

NIEMEYER, Circuit Judge, dissenting:

When offering legislative prayers in which the Divine

Being is publicly asked for guidance and a blessing of the leg-

islators, religious leaders will hereafter have to refrain from

referencing the Divine Being with the inspired or revealed

name, according to each leader’s religion. The majority’s

decree commands that every legislative prayer reference only

"God" or some "nonsectarian ideal," supposedly because

other appellations might offend. Thus, in a stated sensitivity

to references that might identify the religion practiced by the

religious leader, the majority has dared to step in and regulate

the language of prayer—the sacred dialogue between human-

kind and God. Such a decision treats prayer agnostically;

reduces it to civil nicety; hardly accommodates the Supreme

Court’s jurisprudence in Marsh v. Chambers, 463 U.S. 783

(1983); and creates a circuit split, see Pelphrey v. Cobb

County, Ga., 547 F.3d 1263 (11th Cir. 2008) (finding consti-

tutional legislative prayers offered by "volunteer leaders of

different religions, on a rotating basis," even though the

prayers referenced Jesus; Allah; the God of Abraham, Isaac,

and Jacob; Mohammed; and Heavenly Father). Most fright-

fully, it will require secular legislative and judicial bodies to

evaluate and parse particular religious prayers under an array

of criteria identified by the majority.

JOYNER v. FORSYTH COUNTY 29

It is the policy of the Board of Commissioners of Forsyth

County, North Carolina, to invite religious leaders from the

various congregations in the County, "on a first-come, first-

serve basis," to offer a prayer before the beginning of its

twice-monthly meetings, "for the benefit and blessing of the

Board." The Board allows the religious leaders to determine

the content of the prayer except that it "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 invo-

cational speaker." Under this denominationally neutral and

proactively inclusive policy, prayers from a broad array of

religions and denominations have been offered, although most

—reflecting the County’s demographics and the responses of

its religious leaders—have been offered by leaders of Chris-

tian denominations.

Janet Joyner and Constance Blackmon commenced this

action to declare these prayers unconstitutional and to enjoin

their continuation because the prayers offered have been

mostly Christian and have often invoked the name of Jesus.

Joyner and Blackmon allege in their complaint that they are

"offended by the sectarian prayers because the prayers are an

unconstitutional endorsement of a particular religion and an

improper attempt by the county government to prefer one reli-

gious faith over others."

The district court granted summary judgment to Joyner and

Blackmon, concluding that, because of the frequency of

Christian prayers, "the invocation Policy, as implemented, has

resulted in Government-sponsored prayers that have

advance[d] a specific faith or belief and have the effect of

affiliating the government with that particular faith or belief,"

i.e., Christianity.

I would reverse this judgment. Because Forsyth County has

established a completely neutral policy of allowing all and

any religious leaders to deliver invocational prayers of their

30 JOYNER v. FORSYTH COUNTY

own composition before Board meetings and has sought

proactively to be inclusive, I would conclude that the prayers

do not violate the Establishment Clause. The Establishment

Clause does not require the County to forbid invocational

speakers from making sectarian references in their prayers.

Rather, the County’s policy of pluralistic inclusion complies

with the Establishment Clause and more particularly the

Supreme Court’s opinion in Marsh, which approved legisla-

tive prayers as constitutional so long as the government does

not proselytize, advance one religion or faith over another, or

disparage any other religion or faith. Marsh, 463 U.S. at 794-

95.

I

The Forsyth County Board of Commissioners has allowed

religious invocations before its meetings since 1979, and in

May 2007, it adopted a written policy that codified, but did

not change, its practice.

The policy expresses the Board’s desire "to solemnize

[Board] proceedings" but provides that "[n]o member or

employee of the Board or any other person in attendance at

the meeting shall be required to participate in any prayer that

is offered." The policy states that "[t]he prayer shall be volun-

tarily delivered by an eligible member of the clergy/religious

leader in Forsyth County," and, "[t]o ensure that such person

(the "invocational speaker") is selected from among a wide

pool of the County’s clergy/religious leaders," the Clerk of

the Board sends an invitation to the religious leader of every

congregation with a presence in the County, asking if the reli-

gious leader would like to deliver an invocational prayer at a

Board meeting. The invitation reads in relevant part:

The Forsyth County Board of Commissioners makes

it a policy to invite members of the clergy/religious

leaders in Forsyth County to voluntarily offer a

JOYNER v. FORSYTH COUNTY 31

prayer before the beginning of its meetings, for the

benefit and blessing of the Board.

***

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.

Religious leaders responding to the invitation are scheduled

"on a first-come, first-serve basis" to deliver the prayer, and

no religious leader receives compensation for the service.

Moreover, the Board has charged the Clerk of the Board with

making every reasonable effort "to ensure that a variety of eli-

gible invocational speakers are scheduled for the Board meet-

ings." To this end, the policy provides that "[i]n any event, no

invocational speaker shall be scheduled to offer a prayer at

consecutive meetings of the Board, or at more than two (2)

Board meetings in any calendar year."

The policy states that the Board will exercise no editorial

control over invocational prayers 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."

The list that the Clerk compiled of religious leaders

responding to the Clerk’s invitation is lengthy and includes a

broad array of religions and denominations. While the major-

ity on the list are identifiably Christian, including large Chris-

tian denominations, such as Methodists, Baptists,

Presbyterians, Greek Orthodox, Catholics, Episcopalians, and

Lutherans, it also includes other smaller Christian denomina-

32 JOYNER v. FORSYTH COUNTY

tions and non-Christian religions, such as Moravian, "non-

denominational," Universalist, Deliverance, Apostolic, Disci-

ples of Christ, Church of Christ, Ba’hai Faith, Holiness, Wes-

leyan, Interdenominational, Islamic, Jewish, Mormon,

Seventh Day Adventist, Assembly of God, Nazarene, Pente-

costal, Friends/Quaker, and Jehovah’s Witness.

The prayers that have been offered by the responding reli-

gious leaders have generally asked for Divine guidance and

the blessing of the Board, usually appealing to "God" or "Fa-

ther." A number of the Christian prayers also ended by invok-

ing the name of Jesus.

The American Civil Liberties Union of North Carolina

Legal Foundation ("ACLU") wrote a letter to the Board in

October 2006 "recommend[ing] that [the Board] adopt a pol-

icy to ensure that Forsyth County Board of Commissioners

meetings are not being opened with sectarian invocations."

When the Board, in response to the admonition, affirmed its

policy of opening its meetings with invocations by religious

leaders under the neutral and inclusive policy that it had fol-

lowed since 1979, Janet Joyner and Constance Blackmon

commenced this action against the Board.

In their complaint, Joyner and Blackmon complain of "at

least 16 sectarian (Christian) prayers" delivered at meetings

during the course of the year from January 2006 through Feb-

ruary 2007, as well as a prayer given on December 17, 2007.

Most of the challenged prayers, which are set forth in the

complaint, asked God to guide and bless the Commissioners

and invoked Jesus’ name at the conclusion. Joyner and Black-

mon alleged that these sectarian prayers "offended" them

because they constituted "an unconstitutional endorsement of

a particular religion and an improper attempt by the county

government to prefer one religious faith over others."

On cross-motions for summary judgment, the magistrate

judge concluded that the prayers presented at the beginning of

JOYNER v. FORSYTH COUNTY 33

meetings of the Board of Commissioners could not, "as a

whole," be considered "nonsectarian or civil prayer." The

magistrate judge concluded that the prayers displayed "a pref-

erence for Christianity over other religions by the govern-

ment. The frequent references to Jesus Christ cause the

prayers to promote one religion over all others, and thus the

effect of these prayers is to affiliate the Board with a specific

faith or belief." The magistrate judge recommended that

Joyner and Blackmon’s motion for summary judgment be

granted and that Forsyth County’s motion for summary judg-

ment be denied.

The district judge agreed and signed an order, dated Janu-

ary 28, 2010, declaring that the invocation policy, "as imple-

mented," violated the Establishment Clause and enjoining the

Board from "continuing the Policy as it is now implemented."

The majority affirms this judgment. In doing so, it does not

prohibit legislative prayer, nor does it find the policy uncon-

stitutional. Rather, it finds that because the prayers actually

offered were predominately Christian, often invoking the

name of Jesus, the practice violated the Establishment Clause.

It reasoned, "The proximity of prayer to official government

business can create an environment in which the government

prefers—or appears to prefer—particular sects or creeds at

the expense of others." Ante, at 13 (emphasis added). It rules

accordingly that the Forsyth County Board of Commissioners

cannot tolerate prayers at its meetings that so frequently

invoke the name of Jesus. For the reasons that follow, I con-

clude that the Establishment Clause does not require that For-

syth County censor and restrict legislative prayers as the

majority mandates.

II

In their complaint, Joyner and Blackmon focus on actual

legislative invocations, not the policy governing the prayers.

They note that a vast majority of the prayers given have been

34 JOYNER v. FORSYTH COUNTY

Christian and have often invoked Jesus, and they argue, there-

fore, that this de facto pattern unconstitutionally advances

Christianity over all other faiths.

Forsyth County maintains that its policy for opening legis-

lative sessions with prayer is neutral and inclusive and that the

Board has not advanced one faith or religion in implementing

the policy. It stresses that the Supreme Court has cautioned

courts against parsing legislative prayers, as Joyner and

Blackmon would have us do. Because there is no evidence

that the County has used its policy to advance one religion

over another, it maintains that, under Marsh, we must not ana-

lyze and judge the content of each prayer.

While Forsyth County does not deny that a majority of the

prayers were offered by religious leaders of Christian denomi-

nations and that many of the prayers invoked the name of

Jesus, it contends that the Establishment Clause does not

require a legislative body to censor Jesus’ name or other

names given by a religion to the Divine Being from invoca-

tions when the invocations are offered "before a meeting, in

a designated public forum, by a diverse pool of visiting reli-

gious leaders who volunteer in response to an open, equal

invitation." It asserts that under Marsh, it can open sessions

with prayer so long as the prayer opportunity has not been

exploited to proselytize, to advance any one religion or faith,

or to disparage any religion or faith, and that the content of

such prayer "is not of concern to judges."

Because the only evidence of the government advancing

one religion was the fact that a majority of the prayers offered

under the neutral and inclusive policy were Christian, I would

find the evidence insufficient to support the conclusion that

Forsyth County was advancing Christianity. Accordingly, I

would affirm both the policy and the practice under it.

The Marsh decision, which stands as the applicable law,

see Simpson v. Chesterfield County Bd. of Supervisors, 404

JOYNER v. FORSYTH COUNTY 35

F.3d 276, 280-82 (4th Cir. 2005), holds in a straightforward

manner that legislative prayer to a Divine Being does not vio-

late the Establishment Clause, which provides that "no law

respecting an establishment of religion" be made. U.S. Const.

amend. I. Based on a continuous historical practice of over

200 years and the original understanding of the Clause, the

Supreme Court in Marsh stated:

We conclude that legislative prayer presents no more

potential for establishment than the provision of

school transportation, beneficial grants for higher

education, or tax exemptions for religious organiza-

tions.

Marsh, 463 U.S. at 791 (internal citations omitted). Explain-

ing, the Court stated:

In light of the unambiguous and unbroken history of

more than 200 years, there 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 circumstances,

an "establishment" of religion or a step toward estab-

lishment.

Id. at 792.

To support his argument in Marsh that the Nebraska prac-

tice of opening legislative sessions with prayer was inappro-

priate, legislator Ernest Chambers pointed to the facts (1)

"that a clergyman of only one denomination—Presbyterian—

has been selected for 16 years"; (2) "that the chaplain is paid

at public expense"; and (3) "that the prayers are in the Judeo-

Christian tradition." Marsh, 463 U.S. at 793. Yet the Supreme

Court found each of the three arguments made by legislator

Chambers insufficient to render Nebraska’s practice unconsti-

tutional. Rejecting Chambers’ first point, the Supreme Court

36 JOYNER v. FORSYTH COUNTY

observed that "[w]e cannot, any more than Members of the

Congresses of this century, perceive any suggestion that

choosing a clergyman of one denomination advances the

beliefs of a particular church. To the contrary, the evidence

indicates that [the clergyman] was reappointed because his

performance and personal qualities were acceptable to the

body appointing him." Id. at 793. The second point is not

applicable here because Forsyth County did not pay the reli-

gious leaders. And finally, addressing the complaint that the

prayers were in the Judeo-Christian tradition, the Court stated

what is applicable here:

The content of the prayer is not of concern to judges

where, as here, there is no indication that the prayer

opportunity has been exploited to proselytize or

advance any one, or to disparage any other, faith or

belief. That being so, it is not for us to embark on a

sensitive evaluation or to parse the content of a par-

ticular prayer.

Id. at 794-95.

In sum, Marsh stands for the following principles of Estab-

lishment jurisprudence: (1) legislative prayer invoking Divine

guidance for a legislative body is not an establishment of reli-

gion, 463 U.S. at 792; (2) choosing the religious leader of a

single denomination or religion to say the legislative prayer

does not advance the beliefs of that leader’s religion over oth-

ers, id. at 793; (3) the fact that prayers are only from the

Judeo-Christian tradition is irrelevant, as "it is not for [courts]

to embark on a sensitive evaluation or to parse the content of

a particular prayer," id. at 794-95; and (4) legislative prayers

may not proselytize, advance one religion over another, or

disparage other religions or beliefs, id.

The majority reads Marsh as resting on the fact that the

challenged prayers in that case were characterized as Judeo-

Christian—a "non-sectarian ideal," as the majority claims.

JOYNER v. FORSYTH COUNTY 37

Ante, at 13. To support this reading, it points to the Supreme

Court’s dicta in County of Allegheny v. American Civil Liber-

ties Union, 492 U.S. 573 (1989), referring to the general reli-

gious references in Marsh. Allegheny’s dicta, however, do not

govern legislative prayer cases. As this court noted, "Alle-

gheny concerned religious holiday displays, referencing

Marsh to confirm that Marsh did not apply in that context.

Nothing in Allegheny suggests that it supplants Marsh in the

area of legislative prayer." Simpson, 404 F.3d at 281 n.3.

Using cases in other areas of Establishment Clause jurispru-

dence is especially dangerous, because "if Marsh means any-

thing, it is that the Establishment Clause does not scrutinize

legislative invocations with the same rigor that it appraises

other religious activities." Id. at 287.

In this case, Joyner and Blackmon raise arguments similar

to those rejected in Marsh, and I would likewise reject them

here.

Even as I recognize that the content of prayer remains

mostly out of bounds for review by civil courts, I must note,

in view of the majority’s emphasis on content, that the prayers

in this case were largely generic petitions to a Divine Being

to bless the legislative body and request that it be guided to

act wisely and justly in the interest of the citizens. Indeed, it

is remarkable how uniform in this regard the prayers were.

Looking at some of the examples included in the complaint,

the core requests of these prayers state:

• [S]o we ask tonight, Father, not only for You to

be in our midst but for You to make available to

each commissioner every resource they will need

to be able to make the right decisions. [January

9, 2006]

• We pray tonight, God, that You will guide these

commissioners; and we pray, God, that You will

strengthen the residents of this community. God,

38 JOYNER v. FORSYTH COUNTY

we pray that You would lead us and we pray that

You will forever bless Forsyth County. [February

13, 2006]

• [W]e pray that these men and women in positions

of authority, recognizing this, will take their posi-

tions seriously; that they will not use them to

their own advantage, but the advantage of those

they serve; that they would ask Your guidance

and wisdom when making decisions; and that

they would seek Your approval over the approval

of men and women. [March 13, 2006]

• I pray for these commissioners tonight. I pray for

all that will transpire in this meeting under Your

authority; as the act of governing goes forth, that

it would go forth with equity and with justice and

with kindness and with wisdom. [March 27,

2006]

• Father, bless the things that are said tonight and

the decisions that are made. [April 10, 2006]

• I’d ask that You’d give them great wisdom as

they make decisions about our lives here in For-

syth County. [May 8, 2006]

• We ask a special blessing upon our commission-

ers, Father. We ask that You would grant them

with wisdom and understanding. [May 22, 2006]

• [W]e would ask You to give Your spirit to this

meeting; and that these commissioners, they may

seek justice for all and hear the voices of those in

need. [June 26, 2006]

Most of the prayers did conclude with a Christian invocation,

such as "in Jesus’ name we pray."

JOYNER v. FORSYTH COUNTY 39

The majority focuses on the prayer given on December 17,

2007, noting that it not only contained many references to

Jesus Christ, but also references his divine role. This focus by

the majority on the December 17 prayer, simply because of its

description of Jesus’ role in Christianity, is precisely the

content-inquiry that Marsh intended to foreclose. With such

an inquiry, must we now determine how many times the name

Jesus is spoken or what description of him is given? Surely

because there is no standard for this inquiry, the majority

seems to fall back on an evaluation of the "pressure to stand

and bow" or on some form of "ostracism" felt by persons

hearing the prayer. Ante, at 27. Yet in doing so, the majority

relies on inappropriate grounds for finding a constitutional

violation. The Establishment Clause does not protect against

feelings of ostracism or marginalization. See Lee v. Weisman,

505 U.S. 577, 597 (1992) ("We do not hold that every state

action implicating religion is invalid if one or a few citizens

find it offensive. People may take offense at all manner of

religious as well as nonreligious messages, but offense alone

does not in every case show a violation"). Rather, the Estab-

lishment Clause prevents governments from preferring one

religion over others. The majority’s focus on the December 17

prayer misdirects the necessary analysis.

To be sure, Joyner and Blackmon did, in their amended

complaint, also focus on the December 17 prayer. But they

did so to complain that any invocation of Jesus by the reli-

gious leaders speaking the prayers evidences a governmental

preference for Christian prayer. Under their complaint, the

only question raised is whether the multiplicity of prayers said

in the Christian tradition constitutes a government advance-

ment of prayer, in violation of the Establishment Clause. The

majority goes a step further than the plaintiffs’ complaint, not-

ing not only the multiplicity of references to Jesus but also the

degree of sectarianism contained in particular prayers. This

inquiry, distinguishing "hard" sectarianism from more "soft"

sectarian references embroils the court in a standardless

review of religious prayers.

40 JOYNER v. FORSYTH COUNTY

In determining what it means to "advance" one religion or

faith over others, the touchstone of the analysis should be

whether the government has placed its imprimatur, deliber-

ately or by implication, on any one faith or religion. See

Marsh, 463 U.S. at 792-94. More is necessary than to find

that religious leaders selected to offer prayers were of one

denomination. In Marsh, even though the Nebraska legisla-

ture had placed its imprimatur on the Presbyterian chaplain’s

prayers inasmuch as the chaplain had been employed and paid

by the legislature for 16 years, the Supreme Court concluded

that the legislature had not advanced one religion, because the

chaplain had given broad, inclusive prayers over those years.

See Marsh, 463 U.S. at 793 n.14.

By contrast, however, in Wynne v. Town of Great Falls,

South Carolina, 376 F.3d 292 (4th Cir. 2004), the Town

Council allowed only Christian prayers and refused to allow

prayers associated with other religions. Id. at 295. In that cir-

cumstance, we held that the Council’s actions had affiliated

the Council with one specific faith and demonstrated a prefer-

ence for Christianity over other religions. Id. at 298-99. As we

noted,

Here, the Town Council insisted upon invoking the

name "Jesus Christ," to the exclusion of deities asso-

ciated with any other particular religious faith, at

Town Council meetings in public prayers in which

the Town’s citizens participated. Thus, the Town

Council clearly "advance[d]" one faith, Christianity,

in preference to others, in a manner decidedly incon-

sistent with Marsh.

Id. at 301; see also Simpson, 404 F.3d at 282 (characterizing

Wynne as holding that "a Town Council’s practice explicitly

advancing exclusively Christian themes to be unconstitu-

tional").

In Simpson, we addressed a prayer policy much like the one

at issue here and affirmed its constitutionality. Chesterfield

JOYNER v. FORSYTH COUNTY 41

County had established a first-come, first-serve policy for

religious leaders to give invocations. But the County did

decline to allow a Wiccan to offer an invocational prayer.

Even though the governmental entity exercised this limited

control, we approved the County’s policy, based mostly on

the general inclusiveness of its policy and its neutrality gener-

ally in selecting leaders to deliver prayers. While the holding

in Simpson did not explicitly hinge on the fact that religious

leaders honored the County’s request not to make sectarian

references in prayers, that too was an indicator that the gov-

ernment was not using its power to select religious leaders to

offer prayers to advance a particular religion. See 404 F.3d at

284.

When examining Forsyth County’s policy and practice in

light of these cases, one can only conclude—indeed, more

clearly than in Marsh and Simpson—that Forsyth County did

not exploit the prayer opportunity to advance any one religion

over others. Most importantly, nothing demonstrates the

County’s preference for any particular faith or religion.

Indeed, the evidence shows otherwise.

First, the County established a neutral and proactively

inclusive policy of allowing all religious leaders in the County

to deliver invocations at Board meetings. It is undisputed that

both the County’s policy and its implementation treat reli-

gious leaders from all religions identically, and no congrega-

tion was excluded from the County list. Indeed, the County

proactively protected its inclusive policy by (1) inviting reli-

gious leaders from all congregations in the County to offer

prayers; (2) allowing any congregation that was accidentally

excluded from the list to be placed on the list simply by mak-

ing a written request to the Clerk; and (3) insisting that no

religious leader could offer a prayer in back-to-back meetings

and, in any event, no more than two times a year.

Second, the Clerk scheduled the invocations on a first-

come, first-serve basis, eliminating any opportunity for

County officials to assert preferences.

42 JOYNER v. FORSYTH COUNTY

Third, the County exercised no editorial control over the

invocations beyond that required by Marsh. It did not even

request to review prayers before religious leaders offered

them.

And fourth, the County stated affirmatively to each reli-

gious leader that the prayer opportunity must not be "ex-

ploited 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."

None of the policies in the prior cases approving legislative

prayer was as neutral and inclusive as the policy in Forsyth

County, and there is no evidence that Forsyth County

diverged from its policy in implementing it.

Joyner and Blackmon argue that Forsyth County has effec-

tively advanced Christianity over other religions, even though

the County’s policy was neutral and inclusive, because it

turned out that most of the prayers offered were in fact Chris-

tian prayers. But this argument fails to recognize that the

nature of the prayer was not determined by the County or by

any policy the County adopted or implemented. The fre-

quency of Christian prayers was not the wish or preference of

Forsyth County, and the County in no way affirmed one faith

over another. The frequency of Christian prayer was, rather,

the product of demographics and the choices of the religious

leaders who responded out of their own initiative to the Coun-

ty’s invitation. The County provided the most inclusive policy

possible, but it could not control whether the population was

religious and which denominations’ religious leaders chose to

accept the County’s invitation to offer prayer. Moreover, there

is no evidence to suggest that the Board attempted to game

the demographics of Forsyth County by manipulating the list

of religious leaders to ensure that only Christian prayer would

be offered. The Board never even informed itself of the reli-

gious demographics of the County. Thus, sectarian references

were the product of free choice and religious leaders’ com-

JOYNER v. FORSYTH COUNTY 43

posing their own invocations, without any control or review

of content by the County.

This record does not support the conclusion that Forsyth

County established religion or expressed a preference for or

an affiliation with any particular religion any more than the

record did in the school voucher cases. See Zelman v.

Simmons-Harris, 536 U.S. 639 (2002). In Zelman, the

Supreme Court upheld a school voucher program against an

Establishment Clause challenge, stating that "where a govern-

ment aid program is neutral with respect to religion, and pro-

vides assistance directly to a broad class of citizens who, in

turn, direct government aid to religious schools wholly as a

result of their own genuine and independent private choice,

the program is not readily subject to challenge under the

Establishment Clause." Id. at 652; see also Good News Club

v. Milford Central Sch., 533 U.S. 98, 114 (2001) ("[A] signifi-

cant factor in upholding governmental programs in the face of

Establishment Clause attack is their neutrality towards reli-

gion"). In the same way, Forsyth County does not advance

one religion. It allows all religions to give legislative invoca-

tions and cautions those religious leaders not to exploit the

opportunity for proselytization or disparagement.

The majority somehow concludes that because religious

leaders offered sectarian prayers, Forsyth County’s policy and

implementation of its policy were for that reason not neutral.

It states, "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" in the Constitution. Ante, at 5. This

argument actually backfires, though, requiring the County to

police prayers, rather than to remain neutral. It also overlooks

the real life fact that when Forsyth County calls for prayers

from religious leaders under a neutral policy that is proac-

tively inclusive, the prayers will reflect the religions of the

religious leaders, not the preferences of the County.

44 JOYNER v. FORSYTH COUNTY

The majority holds the position that "to shut our eyes to

patterns of sectarian prayer in public forums is to surrender

the essence of the Establishment Clause." Ante, at 21 (empha-

sis added). Yet it also recognizes that "courts should not be

in the business of policing prayers for the occasional sectarian

reference—that carries things too far." Id. (emphasis added).

Yet its holding, focusing on the prayer of December 17,

polices all prayer to exclude sectarian references. To be fair,

the majority is probably more troubled with the frequency of

Christian references than with the December 17 prayer. It

complains that the references to Jesus were overwhelming,

ante, at 21-22, representing "almost four-fifths of the

prayers," ante, at 24. This general content review, however,

is also problematic and can lead to religious hostility. The

court is left with either directing the government to prohibit

sectarian prayer altogether, a position that is not constitution-

ally required and is in direct conflict with Pelphrey v. Cobb

County, Ga., 547 F.3d 1263 (11th Cir. 2008), or requiring leg-

islative bodies to establishment sectarian quotas.

The majority’s position also entangles the legislative bodies

in determining what form of prayer is sectarian or offensive

to given members of the public. For example, adherents to the

Hindu or Muslim religions could assert that they are offended

by prayers in the Judeo-Christian tradition, which the majority

has deemed to be nonsectarian and nonoffensive. But Forsyth

County has appropriately remained neutral to these concerns,

welcoming prayers from all religious congregations in the

County.

Joyner and Blackmon’s proposed alternative of requiring a

policy that mandates only nonsectarian prayer, which is now

adopted by the majority, is problematic and not constitution-

ally required. Not only would it risk governmental intrusion

into the practice of exercising religious beliefs, it would pro-

hibit sectarian prayers where there is no clear definition of

what constitutes a "sectarian" prayer. To be sure, a prayer that

references Jesus is sectarian. But in Simpson, we labeled as

JOYNER v. FORSYTH COUNTY 45

nonsectarian references to "Lord of [l]ords," and "King of

[k]ings." See Simpson, 404 F.3d at 284. Yet, those phrases

refer to Jesus in the New Testament. See Revelations, 19:15;

see also Marsh, 463 U.S. at 823 (Stevens, J., dissenting)

("The Court declines to ‘embark on a sensitive evaluation or

to parse the content of a particular prayer.’ Perhaps it does so

because it would be unable to explain away the clearly sectar-

ian content of some of the prayers given by Nebraska’s chap-

lain" (internal citation omitted)). Because the way that an

individual refers to God and surely the way the individual

prays to God are largely informed and influenced by the indi-

vidual’s religious beliefs, it would be virtually impossible to

undertake the effort of separating those beliefs that are ecu-

menical from those that are sectarian. Such a task is "best left

to theologians, not courts of law." Pelphrey, 547 F.3d at 1267;

see also id. at 1272 ("We would not know where to begin to

demarcate the boundary between sectarian and nonsectarian

expressions, and the [plaintiffs] have been opaque in explain-

ing that standard. Even the [plaintiffs] cannot agree on which

expressions are ‘sectarian’"). Moreover, such a determination

is the very "sensitive evaluation" and "parsing" that the

Supreme Court prohibited in Marsh. 463 U.S. at 795.

In addition, we should not constitutionally mandate that

any governmental body supervise the content of prayers given

by private individuals. As the Supreme Court explained, when

considering a high school and middle school graduation

prayer:

We are asked to recognize the existence of a practice

of nonsectarian prayer, prayer within the embrace of

what is known as the Judeo–Christian tradition,

prayer which is more acceptable than one which, for

example, makes explicit references to the God of

Israel, or to Jesus Christ, or to a patron saint. . . . If

common ground can be defined which permits once

conflicting faiths to express the shared conviction

that there is an ethic and a morality which transcend

46 JOYNER v. FORSYTH COUNTY

human invention, the sense of community and pur-

pose sought by all decent societies might be

advanced. But though the First Amendment does not

allow the government to stifle prayers which aspire

to these ends, neither does it permit the government

to undertake that task for itself.

The First Amendment’s Religion Clauses mean that

religious beliefs and religious expression are too pre-

cious to be either proscribed or prescribed by the

State. The design of the Constitution is that preserva-

tion and transmission of religious beliefs and wor-

ship is a responsibility and a choice committed to the

private sphere, which itself is promised freedom to

pursue that mission. It must not be forgotten then,

that while concern must be given to define the pro-

tection granted to an objector or a dissenting nonbe-

liever, these same Clauses exist to protect religion

from government interference.

Weisman, 505 U.S. at 589 (striking down prayers at gradua-

tion of "primary and secondary school children," for whom

"the risk of compulsion is especially high," but leaving open

the legitimacy of such prayers in similar circumstances for

"mature adults").

The Establishment Clause surely does not require legisla-

tive bodies to undertake the impossible task of monitoring and

prescribing appropriate legislative prayers for religious lead-

ers to offer as invocations. And it does not require that legisla-

tive bodies demand that religious leaders only offer

nonsectarian prayers. Yet the majority imposes these exact

requirements, with all of its constitutionally suspicious prob-

lems.

In sum, the County’s policy for legislative prayer is totally

neutral, proactively inclusive, and carefully implemented so

that the County, in no manner, could be perceived as select-

JOYNER v. FORSYTH COUNTY 47

ing, or expressing a preference for a particular religious

leader, a particular religion or denomination, or a particular

prayer. In this structure, which was meticulously constructed

to follow Supreme Court precedent, our intrusion is nothing

short of a compromise of the County’s effort to maintain an

open and neutral policy.

III

Prayer includes the articulation of words addressed to the

Divine Being in accordance with the beliefs of the prayer-

giver’s religion. Because how one should address the Divine

Being and what one should say cannot be determined by a

civil court of law, efforts to do so would inevitably place

courts in the untenable role of regulating the content of reli-

gious expression.

And to interfere with a prayer-giver’s form of address dur-

ing an invocation is no less intrusive. In the Jewish and Chris-

tian traditions, Moses asked God, when receiving the law,

how he was to refer to God in relating the law to his people.

God told Moses that he must say to the Israelites, "I am who

I am" and therefore he must say, "I am has sent me to you."

God also told Moses to say to the Israelites, "YHWH [the

sacred and unspeakable name of the Lord], the God of your

ancestors, the God of Abraham, the God of Isaac, and the God

of Jacob, has sent me to you." God concluded, "This is my

name forever, and this is my title for all generations." Exodus

3:13-15. Christians call on the Divine Being with the names

God the Father, God the Son (Jesus), and God the Holy Spirit.

Muslims have 99 names for God, but Allah is the supreme

appellation. Yet the majority opinion now directs all religious

leaders to forsake these names to accommodate some "civil,"

court-shaped religion.

Indeed, the majority demands prayers that do not mention

Jesus—at least not "four-fifths" of the time; that are not in too

close a "proximity" to official government business; that

48 JOYNER v. FORSYTH COUNTY

embrace a "non-sectarian ideal"; that do not create "patterns

of sectarian prayer"; that do not "pressure one to stand and

bow." Such a position, however, fails to take prayer as the

sacred dialogue between the Divine Being and the people, as

determined by any given religion represented by the religious

leaders of Forsyth County.

Indeed, Joyner and Blackmon’s complaint about being

pressured to stand and bow during prayer—a complaint that

the majority apparently accepts—is not a complaint against

sectarian prayer or even against a government preference of

a religion or denomination. It is an attack on prayer itself. It

is not the sectarian nature of a prayer, or even its content, that

creates the subtle coercive pressure of which the plaintiffs

complain. It is the allowance of any prayer in the public

forum and the respect for it shown by others that leads to this

pressure. How the majority, in adopting the plaintiffs’ posi-

tion, protects nonsectarian prayer but, at the same time, con-

demns the pressure caused by such prayer because the people

stand and bow their heads suffers from its own inherent

inconsistency.

Forsyth County has not picked any particular

prayer—sectarian or not—nor has it favored any particular

prayer. Its policy is to have a pluralistic celebration of prayer

through which all in the County may solemnize the Board’s

meetings while at the same time respecting each religion or

denomination’s form of prayer. And Marsh supports this

approach. It requires—in an effort to preserve respect for a

mutual exercising of religions—that government not permit

religious speech that proselytizes, advances one religion over

another, or disparages other religions. And for that limited

purpose, it directs that the content of legislative prayer be

reviewed. But the review is limited and is designed for the

mutual protection of the diverse prayers of a religiously plu-

ralistic society, spoken in accordance with each religion.

Finally, I note that the majority’s logic in prohibiting only

an invocation of Jesus during prayers in Forsyth County, but

JOYNER v. FORSYTH COUNTY 49

otherwise allowing other prayer content, escapes me. Prayer

includes the invocation of the Divine Being according to the

understanding of the religion, not the court. Would the major-

ity thus preclude a Christian prayer invoking the Holy Spirit

or Pax Christi or the King of kings? Would the majority deny

a prayer invoking the God of Abraham, Isaac, and Jacob?

Whatever name is spoken, it is spoken by the religious leader

in accord with the leader’s religion to call on the Divine

Being. Yet we now legislate, based on the imprecise notion of

nonsectarianism, bowing to political correctness or universal

inoffensiveness and censuring only what offended Joyner and

Blackmon on December 17, 2007, without regard to the dan-

gers of governmental censorship of religious expression.

I respectfully submit that we must maintain a sacred respect

of each religion, and when a group of citizens comes together,

as does the Forsyth County Board of Commissioners, and

manifests that sacred respect—allowing the prayers of each to

be spoken in the religion’s own voice—we must be glad to let

it be. The ruling today intermeddles most subjectively without

a religiously sensitive or constitutionally compelled standard.

This surely cannot be a law for mutual accommodation, and

it surely is not required by the Establishment Clause.