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Courts by Tami Fitzgerald Sexual Orientation at UNC Law by Tami Fitzgerald, J.D. In a letter to the N.C. Family Policy Council, the Dean of UNC-CH School of Law stated that the “sexual orientation” of applicants was irrelevant to this year’s admissions process and will not be solicited on future applications for admission. The North Carolina Family Policy Council (NCFPC) published a story in its March/April edition of Family North Carolina about the question. The article noted that, “There is no federal or state law that requires or authorizes UNC-CH School of Law admissions officials to grant preferences on the basis of one’s identity as ‘gay, lesbian, bisexual, transgender or queer’ during the admissions process.” The article suggested that the only two logical reasons for the question were either that the law school sought to grant a preference in admissions on the basis of “sexual orientation” or “gender identity” or that the law school felt it was important to help the gay and lesbian law student association to identify potential members. The article concluded that, “Neither option is appropriate, especially for a publicly funded law school.” In response to an inquiry from the NCFPC about the status of the question, Dean Boger revealed in a letter dated June 9, 2008, that he had asked for an internal review by the School’s admissions staff and faculty-led admissions committee that resulted in striking the question from future applications for admission. He stated, “The future application for admission to the UNC School of Law will no longer include question 12 or any equivalent that would ask applicants to reveal their sexual orientation.” He did note, however, that the School will: [A]ffirmatively convey to prospective students the School’s desire to recruit and enroll a diverse student body, considering all forms of diversity, including economic, social, educational, and viewpoint, among others. We believe that this diversity enriches the educational experience of our students, and we may design a question that invites future applicants to express what they might contribute to such an environment. Dean Boger unequivocally stated that the question, “did not affect the admissions process at all. Neither an applicant’s answer to this question—whether in the affirmative or the negative—nor the failure to answer the question affected the likelihood that any applicant would be admitted. In short, it was not a factor considered during the 2007-2008 admissions cycle.” The internal investigation conducted by Dean Boger and his resulting decision to strike the question from future applications for admission was a direct response to the inquiry of the N.C. Family Policy Council and others. While a diverse student body enriches the law school learning environment, the “sexual orientation” or “gender identity” of a law school applicant is not the proper subject of inquiry for law school admissions. Prayer “In Jesus’ Name” The U.S. Court of Appeals for the Fourth Circuit, whose jurisdiction includes North Carolina, ruled on July 23, 2008, in the case of Turner v. City Council of Fredericksburg,1 that the Fredericksburg, Virginia City Council may prohibit its members from opening their meetings with a prayer in Jesus’ name without violating free speech rights under the First Amendment. A City Council member, the Reverend Hashmel Turner, brought the suit when he was excluded from the prayer rotation because he intended to pray “in Jesus’ name.” Rev. Turner challenged a non-sectarian prayer policy adopted by the City Council in 2005. The policy was put in place in response to a threat from the American Civil Liberties Union (ACLU) to file a lawsuit over Rev. Turner’s past prayers in the name of Jesus. A three-judge panel of the Fourth Circuit Court of Appeals issued the decision, which was written by retired U.S. Supreme Court Justice Sandra Day O’Connor, who participated as a visiting judge. The Court said the issue of the constitutionality of the prayer policy hinged on whether the prayer was speech attributed to the government or personal speech. It used a four-part test to determine whether the prayer was government or private speech. The test had previously only been used in the Fourth Circuit in the context of specialty license plates issued by the State of Virginia. The Court considered: 1) [T]he central ‘purpose’ of the program in which the speech occurs, 2) the degree of ‘editorial control’ exercised by the government or private entities over the content of the speech, 3) the identity of the ‘literal speaker’, and 4) whether the government or private entity bears the ‘ultimate responsibility’ for the content of the speech.2 According to the Court, only the fourth factor was even in question, as the first three factors clearly indicated the prayer constituted government speech. The first factor was satisfied because the prayer was listed on the agenda as an official part of every Council meeting and served a government purpose in aiding the Council to conduct the business of the government. As to the second factor, the Court found that the Council had substantial editorial control because it had prohibited sectarian prayers. The third factor indicated government speech, because only City Council members were allowed to give the opening prayers. Rev. Turner was “allowed to speak only by virtue of his role as a Council member.” As to the last factor, the Court concluded that the government bore ultimate responsibility for the prayer’s content, “given the focus of the prayers on government business at the opening of the Council’s meetings.” Therefore, it reasoned that, because the prayers were government speech, and not Rev. Turner’s own private speech, the prayer policy did not violate his Free Speech and Free Exercise rights under the First Amendment. The Court also found that the policy’s requirement that the prayers be “nondenominational” did not violate the Establishment Clause of the First Amendment. Rather, the policy was “designed to make the prayers accessible to people who come from a variety of backgrounds, not to exclude or disparage a particular faith.” There is no question that the practice of opening meetings of public bodies with prayer is historically essential to American heritage and is constitutionally protected. The U.S. Supreme Court’s central case on the public prayer issue, Marsh v. Chambers3, struck down a challenge to the Nebraska Legislature’s practice of opening each day of its sessions with a prayer by a chaplain paid with taxpayer dollars. In finding the practice did not violate the Establishment Clause, Chief Justice Burger noted: The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.4 Likewise, he concluded that since the members of Congress had authorized opening each session of Congress with a prayer offered by a paid chaplain only three days before agreeing on the final language of the Bill of Rights (which includes the Establishment Clause), they could not have intended the Establishment Clause to invalidate legislative prayer.5 Justice Burger deduced: “Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative 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 session of Congress.”6 The question is whether prayers offered before a public body can be sectarian in nature. While Marsh protects legislative prayer due to its rich history with the founding fathers, the case did not address specifically sectarian prayer. In Marsh, there is no mention that a reference to a sectarian deity would violate the Establishment Clause, because that issue was not before the Court. The Nebraska chaplain removed references to Jesus from his prayers before the case was filed.7 Rather, Marsh is more concerned with the context of the prayer than its content, as is indicated by this comment: 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 particular prayer.8 The application of Marsh by the Fourth Circuit Court of Appeals has produced varying results. In one case,9 the Fourth Circuit pronounced a town council’s practice of praying exclusively in the name of Jesus and chiding a Wiccan citizen for her objections unconstitutional. It noted that: Here, the Town Council insisted upon invoking the name ‘Jesus Christ,’ to the exclusion of deities associated 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 “advanced” one faith, Christianity, in preference to others, in a manner decidedly inconsistent with Marsh.10 This stands in contrast with a policy approved in a subsequent case11 in which various clergy in a county’s religious community were invited to present invocations during meetings of the county board. The Fourth Circuit found it important that the county “made plain that it was not affiliated with any one specific faith by opening its doors to a wide pool of clergy.”12 Under the policy, the county had invited clergy from Muslim, Jewish, Mormon, and Jehovah’s Witness, as well as Christian, churches and thus had met the Marsh directive not to, “proselytize or advance any one faith or belief or to disparage any other faith or belief.”13 A Wiccan priestess argued that even if the invocations themselves were not objectionable, the selection process for those who led them was, because it excluded her. (The County’s policy allowed only monotheistic congregations to add their religious leaders to the list of those eligible to give an invocation.) The Fourth Circuit upheld the policy, stating: “A party challenging a legislative invocation practice cannot, therefore, rely on the mere fact that the selecting authority chose a representative of a particular faith, because some adherent or representative of some faith will invariably give the invocation.”14 Given the confusion created in the Fourth Circuit by this collection of cases and the recent threats of the American Civil Liberties Union (ACLU) to file suit against cities and counties over their prayer practices, the Alliance Defense Fund (ADF) drafted two model prayer policies that it believes will withstand constitutional scrutiny. Those policies either recommend that the government body maintain a diverse list of local clergy among whom the privilege of praying is rotated on a first-come/first-serve basis, or that the elected officials themselves give the prayer in an informal manner (before the gavel) and not as official business of the body (not part of the agenda). The model policies ensure that the invocations will be offered according to the dictates of the conscience of each prayer-giver, as the First Amendment requires. ADF believes that sectarian references during such prayers will not invalidate the policies. The Board of County Commissioners in Forsyth County adopted the ADF model policy that sets up a list of local clergy among whom the prayer duty is rotated. The ACLU sued the County for violating the Establishment Clause of the First Amendment because several of the local pastors who gave the invocation prayed in the name of Jesus, although clergy from non-Christian religions were included in the rotation as well.15 The case is pending in the Federal District Court for the Middle District of North Carolina, and a motion to dismiss by Forsyth County (who is represented by ADF) has been pending for several months. While the Turner case may be instructive, the Fourth Circuit did not decide in that case that the Establishment Clause requires a non-sectarian prayer policy, but that it allows such a policy. The Forsyth County case may very well be the case that goes all the way to the U.S. Supreme Court on the issue of whether a non-proselytizing prayer before an official government body’s meeting must be non-sectarian. It presents a direct showdown between the Establishment clause and the Free Exercise clause. As long as the prayer does not advance any one religion or disparage any other religion, the prayer-giver should have a right to pray according to the dictates of his or her religious conscience under the First Amendment Free Speech clause. Endnotes:
Tami L. Fitzgerald is staff attorney with the North Carolina Family Policy Council. Copyright © 2008. North Carolina Family Policy Council. All rights reserved.
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