On The Front Lines
Turner Case Heads to U.S. Supreme Court: Rutherford Institute Attorneys to Challenge 'Government Speech' Doctrine, Appeal Fourth Circuit Ruling
RICHMOND, Va. -- In a unanimous ruling, a three-judge panel for the U.S. District Court of Appeals for the Fourth Circuit has declared that a policy preventing City Councilman Hashmel Turner from praying at council meetings according to his conscience and religious beliefs does not violate his free speech and free exercise rights. The opinion, which was authored by retired Supreme Court Justice Sandra Day O'Connor, comes in response to the appeal of a lower court ruling dismissing Turner's First Amendment lawsuit against the City Council of Fredericksburg, Va. Attorneys for The Rutherford Institute had filed suit over the City Council's efforts to prevent Turner from ending his prayers at council meetings with three small words, "in Jesus Christ's name." Hashmel Turner, assisted by The Rutherford Institute, has announced his intention to appeal the Fourth Circuit's ruling to the U.S. Supreme Court.
A copy of the Institute's brief and the Fourth Circuit's opinion are available at:
https://www.rutherford.org/pdf/06-1944.ab.all.aa.pdf
https://www.rutherford.org/pdf/Turner_06-1944.pdf
"This ruling shows exactly how dangerous the government speech doctrine is--it extinguishes free speech," stated John W. Whitehead, president of The Rutherford Institute. "If the government can censor speech on the grounds that it is so-called 'government speech,' it will not be long before this label becomes a convenient tool for silencing any message that does not conform to what government officials deem appropriate."
Hashmel Turner has been a member of the Fredericksburg City Council since 2002. Since the 1950s, the City Council has called upon Council members, on a rotating basis, to open its meetings with prayer. Upon his election in 2002, Turner asked to be placed on the rotating schedule to pray. Turner specifically offered his prayers both for himself individually that he might have divine wisdom and guidance in carrying out his responsibilities and likewise for the deliberation of the City Council.
Turner often ended his prayers "in the name of Jesus Christ" out of a sincere belief that he is required to do so by his faith. After several prayers were offered by Turner in this rotating schedule, the ACLU threatened to sue the City Council for violating the Establishment Clause by allowing Turner to invoke the name of Jesus Christ in his prayers. Soon after, the City Council adopted a policy permitting only "nondenominational" prayers. Attorneys for The Rutherford Institute then filed suit against the City of Fredericksburg's City Council for its discriminatory policy.
In August 2006, the U.S. District Court for the Eastern District of Virginia dismissed Turner's case on the basis that his prayers constituted "government speech." In their appellate brief, Institute attorneys pointed out that "government cannot itself pray, thus prayer cannot be government speech." Moreover, the Supreme Court's "government speech" doctrine has traditionally been applied only where the government actually controlled the content of the speech at issue. Thus, Institute attorneys argued, because the individual Council members control the content of their prayers, the prayers do not constitute government speech.
However, in writing the opinion for the Fourth Circuit, Justice Sandra Day O'Connor declared: "Turner was not forced to offer a prayer that violated his deeply-held religious beliefs. Instead, he was given the chance to pray on behalf of the government. Turner was unwilling to do so in the manner that the government had proscribed, but remains free to pray on his own behalf, in nongovernmental endeavors, in the manner dictated by his conscience."
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