Reflections on Fourth Circuit Oral Argument in Church-State Case

The United States Court of Appeals for the Fourth Circuit does not inform those who argue before it of the identities of the judges on the three-judge panels who will be hearing specific cases until the very morning of the oral argument. And so it was a great surprise — and an even greater honor — to learn yesterday when we walked into the courthouse in Richmond that retired Supreme Court Justice Sandra Day O’Connor would be a member of the panel hearing Turner v. City Council of Fredericksburg, Virginia. The other panel members were Fourth Circuit Judges Diana Gribbon Motz and Dennis Shedd.

As we’ve reported previously, this is a case in which Hashmel Turner, a member of the Fredericksburg City Council, has taken the very bizarre step of suing his own City Council. Represented by a religious right organization, the Rutherford Institute, Turner claims that he has a free speech right to offer official City Council prayers in the name of Jesus, and that the Council’s policy requiring that its opening prayers be nonsectarian is unconstitutional. Along with the law firm of Hunton & Williams, we represent the City Council in this case.

Turner’s arguments are completely contrary to judicial precedent, as the federal district court judge who first heard this case — and ruled against Turner — observed. According to Turner, when he prays in his official capacity as a Council member on behalf of the Council, his prayer nonetheless is private speech, not government speech. Turner’s “private speech” argument has been rejected by every court to have considered the issue of legislative prayer, including the Fourth Circuit. After all, if it is the legislative body’s prayer, how can the prayer not be government speech? And, because the prayer is government speech, the Constitution requires that it cannot be sectarian.

Given the case law rejecting the very claims that Turner is making here, it was not surprising that the judges yesterday seemed unmoved by the arguments of Turner’s counsel, Johan Conrod. Justice O’Connor asked Mr. Conrod if he could think of a single case involving legislative prayer in which the prayer was not considered to be government speech, and he said he could not. “I can’t either,” said Justice O’Connor, who also said it seemed “perfectly reasonable” for the City Council to require that its opening prayers be nonsectarian.

When Mr. Conrod suggested that a lawsuit challenging the constitutionality of Turner’s sectarian Council prayers would be a difficult one, Judge Motz said, “Not in the Fourth Circuit or in the United States of America.” And echoing the words of the federal district court judge who has already ruled against Turner, Judge Shedd told Mr. Conrod that he had “a pretty big hill to climb.”

The Rutherford Institute has misrepresented the City Council’s policy as trampling on Mr. Turner’s free speech and free exercise rights. Nothing could be farther from the truth. In his capacity as a private citizen, Mr. Turner has the same constitutional rights as every other private citizen, including the right to pray in the manner dictated by his faith.

But when Mr. Turner, or any other government official, is acting in his government capacity to offer a prayer on behalf of a legislative body, he stands in the shoes of that body and is no longer acting as a private citizen. And in that capacity, his speech is government speech and cannot be permitted to advance any particular faith. Contrary to the claims of the Rutherford Institute that Councilor Turner is merely seeking equal rights here, he is in fact seeking special rights that the Constitution does not give to any government official.

PFAW