Federal judge tosses Va. councilman's prayer lawsuit

By The Associated Press

RICHMOND, Va. — A federal judge has dismissed a Fredericksburg City Council member's lawsuit challenging the council's nonsectarian prayer policy.

U.S. District Judge James R. Spencer ruled that prayers delivered at the start of council meetings are "government speech" and therefore cannot promote Christianity or any other specific religion.

The council adopted its policy last year after one of its members, the Rev. Hashmel Turner, insisted on invoking the name of Jesus Christ whenever he gave the opening prayer. The American Civil Liberties Union of Virginia had threatened to sue if the practice continued.

Instead it was Turner who filed suit. He claimed that he offers his prayer as an individual, not on behalf of the entire council, and that the new policy impermissibly restricts his speech based on his religious viewpoint.

Spencer disagreed, noting in Turner v. City Council of the City of Fredericksburg that the opening prayer is listed on the council's agenda and that it cannot be delivered until the speaker — an elected official — is recognized by the mayor, who presides over the meetings.

"Contrary to Councilor Turner's assertions, the ultimate responsibility for the content of the speech rests upon the City Council on whose behalf the prayer is offered," Spencer wrote in an opinion issued Aug. 14.

Kent Willis, executive director of the ACLU of Virginia, said he was pleased with the decision.

"This ruling does not affect Reverend Turner's right to deliver sectarian prayers at any time other than the few moments that he's the voice of the Fredericksburg City Council," Willis said.

The Rutherford Institute, a conservative group that often takes on religious-freedom cases, is backing Turner's lawsuit. John W. Whitehead, president of the Charlottesville-based organization, said Spencer's ruling would be appealed to the 4th U.S. Circuit Court of Appeals and, if necessary, the U.S. Supreme Court.

"I had no expectation we'd win at the first level," Whitehead said. "The fundamental question is: This government-speech doctrine, how far are we going to let that go? How far is the Supreme Court going to let it go?"

Spencer cited several higher court rulings, including the Supreme Court's 1983 decision in Marsh v. Chambers, to support his position that "legislative prayers" must be nonsectarian to avoid violating the U.S. Constitution's establishment clause, which prohibits government promotion of one religion over others.

Whitehead said that there are fundamental differences between the facts in Turner's case and those in the cases cited by the judge.

"We think this is viewpoint discrimination," he said.

Turner, a minister at the First Baptist Church of Love, was re-elected to a second four-year term in May. The council removed him from the prayer rotation after he refused to alter his invocation.