Council Prayer Case Raises Broader Free Speech Concerns

(CNSNews.com) - A case in which a local government official was barred from using the name of Jesus Christ during a prayer at a council meeting raises the issue of free speech rights not only of public officials but ultimately of anyone linked to the government in any way, a civil liberties legal group argues.

"The question in the case is whether or not a public official can in any capacity have that kind of private speech," John Whitehead, president of the Rutherford Institute, told Cybercast News Service.

"Our argument is if they can't, then there really isn't any kind of free speech for any kind of public official eventually. It's a dangerous doctrine to be arguing - eventually that can apply to anything."

Moreover, Whitehead said, the restrictions could ultimately even apply to people who aren't public officials at all.

"What 'government speech' means is that if it occurs on government property, if the speaker is in any way tied to the government - this could be a public school student at a graduation ceremony - if it's a government platform then whatever they say is considered 'government speech,'" he said.

"It does away with the First Amendment totally for any speaker in that kind of forum," Whitehead added.

The Rutherford Institute is representing Fredericksburg, Va., city councilman Hashmel Turner in an appeal against an August court ruling that went against him.

Turner was prohibited from invoking the name of Jesus Christ when it was his turn in the rotating schedule to pray at the opening of city council meetings.

The appeal argument revolves around the interpretation of the Establishment Clause of the First Amendment: "Congress shall make no law respecting an establishment of religion."

However, representatives for the city of Fredericksburg also cite the Establishment Clause in their argument.

"Our argument is that the Establishment Clause in general limits or prohibits the ability of the government to promote or endorse religion particularly in a sectarian way," said Elliot Mincberg, senior vice president of People for the American Way (PFAW) Foundation, which is working in conjunction with the American Civil Liberties Union (ACLU.)

According to Mincberg, the danger is opening the door for heavy handed government involvement - something PFAW is trying to prevent.

"A situation where the government appears to be taking sides and promotes a particular religion is part of what the Establishment Clause was designed to prevent because that's what makes religion more free for everyone - not to have the government try to put their thumb on the scales."

The suit was dismissed by the Fourth Circuit Court of Appeals in August 2006. Both sides expect the case to go all the way to the Supreme Court.

"They think this is an opportunity to go all the way to the Supreme Court and make some fundamental changes in Establishment Clause law," Mincberg said, referring to the Rutherford Institute. "I hope that's wrong."

"We are hopeful that even the now more conservative court would realize and would re-affirm the rules and the doctrines that have been applied in this area," he added.

Whitehead hopes the courts, including the Supreme Court, will re-evaluate the current position.

"[The courts] really have to look at what public officials can or can't say in terms of religion. They've got to examine how far this concept of government speech can go," he said.

If there is no change in the status quo, Whitehead sees big government getting out of control.

"If it's carried to its logical conclusion, on any kind of government property you're not going to have any rights. People better think twice about it," he said. "It kind of makes a mockery out of the whole thing of chaplains in the Senate and the president being sworn in on a Bible - those things eventually will have to go."

Mincberg concedes that government involvement is a problem.

"One very important way to protect freedom of religion is not have the government take sides," he said.

For Whitehead, the heart of the matter is a question of public officials being allowed free speech.

"They should have a right to express their private opinions - a right to follow their faith," he said.

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