TRI In The News

Appeals Court Hears Free Speech Case

From The Roanoke Times
Original article available here.

RICHMOND -- A policy prohibiting a Virginia city council member from opening meetings with a prayer mentioning Jesus borders on restricting his right to free speech, lawyers told a federal appeals court Wednesday.

Attorneys for the Rev. Hashmel Turner argued his case before a panel of the 4th U.S. Circuit Court of Appeals that included a visiting judge, retired Supreme Court Justice Sandra Day O'Connor.

Turner's case stems from a policy mandating that prayers used to open Fredericksburg City Council meetings be nonsectarian. At the center of the debate is whether Turner delivers the prayers speaking as a private citizen or whether he's considered to be speaking on behalf of the government.

As a citizen, his attorneys argue, Turner's prayer would be subject to free-speech protection. As an elected official speaking at a council meeting, the city argues, his prayers would constitute government speech and be restricted by the First Amendment.

O'Connor called the case black and white in favor of the city.

"It is government speech, and the rule seems perfectly reasonable," she said.

The Fredericksburg council adopted the policy in 2005 after Turner delivered roughly 100 prayers -- some including the words "in Jesus' name" -- over a four-year period.

The American Civil Liberties Union of Virginia had threatened to sue if the practice continued, arguing the prayer violates the establishment clause, which prohibits government promotion of one religion over others.

"The ACLU has made it clear to Rev. Turner that he has a right to express his religious beliefs in private and in public," Kent Willis, executive director of the Virginia ACLU, said in a statement. "But in those few moments when Rev. Turner offers an official prayer as the voice of the city of Fredericksburg, he must not misuse the power given to him to promote one religion over all others."

But attorney Johan Conrod argued Wednesday that the lines are blurred as to whether Turner should be treated as a private citizen or an elected official when giving the prayer, and what his rights are.

"It's not all government speech," he said. "There is a zone in which an individual has free-speech rights that need to be respected."

He later pointed out that a prayer's contents are not specified by lawmakers, even if they are given in a council meeting.

"Government speech is when the government dictates pretty much every word," he said.

Turner questioned the ambiguity of the policy, which he argued allows some prayers but restricts others.

"The other council members that are still on the prayer rotating roster, for instance, they say 'almighty God,' 'heavenly Father,' what's the difference?" he said.

But attorneys representing the city pointed to similar cases in which courts have supported restricting such prayers.

In August 2006, a federal judge dismissed Turner's case, ruling that prayers delivered at the start of council meetings were indeed government speech.

"This case is not a difficult case," attorney Robert Rolfe told the judges. " ... It's impossible to characterize this as anything other than government speech."

The Rutherford Institute, a conservative group that often takes on religious-expression matters, has promised to take the case to the Supreme Court.

It "goes to religion, it goes to free speech," said John Whitehead, president of the Charlottesville-based organization. "Because he wants to pray to a particular god, he's not being treated equally."

Turner said he would not alter his prayers.

"I don't want to deny my lord and savior Jesus Christ, to come before him and have him deny me later on."