Cuccinelli: governments should follow court rulings against sectarian prayer

Attorney General Ken Cuccinelli says local governments should “take heed” of recent court opinions limiting sectarian prayer at government meetings.

Cuccinelli issued an official opinion last month in response to a request from Delegates Danny Marshall and Don Merricks.

Marshall and Merricks wanted to know the constitutional limits of public prayer at meetings of the Pittsylvania County Board of Supervisors.

The board had been opening its meetings with prayers that referred to Jesus. In August, the American Civil Liberties Union challenged those prayers, saying they violated court rulings about sectarian prayers.

In several cases, including one from Fredericksburg, the Fourth Circuit Court of Appeals has ruled that prayers at government meetings must be non-sectarian — in other words, they must not use terms referring to a particular faith. Praying to Jesus Christ is one such term.

In the Fredericksburg case several years ago, the court had ruled that Fredericksburg City Councilman Hashmel Turner could not pray in the name of Jesus Christ in open council meetings. The court ruled that mentioning Jesus made the prayer sectarian, and that public prayers should not emphasize one faith over others.

In Pittsylvania County the issue has now sparked a federal lawsuit.

Cuccinelli’s opinion suggests that local governments follow the restrictions on prayer set forth by the Fourth Circuit.

Cuccinelli writes that federal courts have upheld legislative prayers, and generally not expressed much concern about their content as long as those prayers aren’t used to proselytize, or advance or disparage any faith.

He also notes that the Fourth Circuit itself has upheld the constitutionality of legislative prayers.

“Nonetheless, when the court has found that such invocations advanced a particular religion, it has held policies governing legislative prayers unconstitutional as applied,” Cuccinelli writes.

He said the Fourth Circuit has said that ministers delivering such prayers may use non-sectarian language, or localities using opening prayers may invite leaders of all faiths, so that prayers might be to Jesus or to Allah or to another name, and that taken together those prayers wouldn’t advance a particular faith.

Cuccinelli devotes a paragraph to explaining the dissent to those rulings, which says the majority ruling would effectively require governments to constantly police the content of prayers to make sure they’re non-sectarian or that leaders of different faiths are delivering the prayers.

He also notes that he’s not suggesting that he believes the Establishment Clause of the U.S. Constitution requires such limitations as the Fourth Circuit has put forth.

“However, that opinion is currently binding in the Fourth Circuit,” Cuccinelli writes.

He concludes that, unless the Fourth Circuit’s opinion is limited in the future, “it would be imprudent for a Virginia locality or officers to act other than in accordance with it.”