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Scott Gaylord analyzes Forsyth County appeal on sectarian prayer at board meetings with Fox 8 News and WFMY News 2

Describing key Supreme Court cases related to the separation of church and state, and the distinct nature of the Forsyth County appeal, Elon Law professor Scott Gaylord said the case could have far reaching implications.

Elon Law professor Scott Gaylord

A January 28 federal district court ruling found that North Carolina's Forsyth County Board of Commissioners was violating the Establishment Clause of the U.S. Constitution by conducting prayers that were primarily Christian in nature before board meetings.

On February 22, the Commissioners voted to appeal that decision before the Fourth Circuit of the U.S. Court of Appeals.

When asked by Fox 8 Morning News why prayer can occur before sessions of the U.S. Congress or before the President's State of the Union address, but not locally, Gaylord explained that the issue related to the specific kind of prayer in which public officials engage.

"As the district court opinion acknowledged, local commissioners are allowed to have some form of prayer, but it would have to be what's called non-sectarian prayer, which would be a general reference to the divine, to God generally, possibly reference to a heavenly father, but not talk of Jesus, Jesus Christ, the Trinity, possibly Allah, as specific references that the district court held were problematic."

Gaylord said the appeal would ask the Fourth Circuit to consider whether government entities can engage in sectarian prayer, if such speech is open to all faiths.

"The Supreme Court has held in a case called Marsh v Chambers [that government speech more generally about the divine] is permissible, and so now the County is pushing that by asking, if that's permissible, why not allow other faiths to come in, be them Christian or otherwise, and reference their god, as long as we're opening it up to all faiths which the county claims that they are, then it shouldn't be a problem under the Constitution."

Speaking with WFMY News 2, Gaylord said the Forsyth County case contained unique elements of the debate over separation of church and state that merit consideration of the federal courts.

"I don't think that the Board of County Commissioners is engaging in any type of frivolous appeal," Gaylord said. "I think it raises a new fact situation that has not been specifically addressed by either the Fourth Circuit or the United States Supreme Court, so there is a new issue there."

Gaylord told Fox 8 News that the case could have far reaching implications if the appeal is successful.

"I think it has the potential to cause a dramatic change if either the Fourth Circuit or the U.S. Supreme Court decides to overturn the district court," Gaylord said. "If it's affirmed, it probably won't have wide-ranging effects, but if it says that now the government can engage in more sectarian references, provided that you're opening it up to lots of different sects or different faith beliefs, then I think that could change things considerably."

To view Gaylord's interview with Fox 8 Morning News, click here, then scroll down to the Morning News Video section, and click on the video segment titled "Discussion: Forsyth Co. Prayer Appeal."

Click here for the WFMY News 2 report on the Forsyth County appeal featuring Gaylord.

Philip Craft,
2/24/2010 11:03 AM