The battle over whether the prayers that open Fredericksburg City Council meetings should include specific religious references will continue tomorrow in Richmond.
Oral arguments are scheduled for tomorrow morning in Councilman Hashmel Turner's appeal to the U.S. 4th Circuit Court of Appeals, challenging the nonsectarian prayer policy his colleagues on the City Council adopted in November of 2005.
Turner, backed by the Charlottesville-based Rutherford Institute, filed suit against the council in January 2006.
He charged that by adopting a policy that allows only nonsectarian prayers before council meetings, the council was violating his rights to free expression.
The council adopted that policy to avoid a lawsuit from the American Civil Liberties Union, which had threatened to sue if Turner continued to pray in the name of Jesus Christ to open meetings.
Federal District Court Judge James R. Spencer dismissed Turner's suit in August 2006.
Spencer wrote that the prayers are government speech, and "The City Council can restrict what is said on its behalf during the opening prayer without infringing on the speaker's viewpoint."
In their appeal, lawyers representing the Rutherford Institute and Turner say the prayers are not government speech, and therefore government can't dictate their content.
The appeal asks why other council members should be able to invoke "Almighty God" and "Heavenly Father" under the nonsectarian policy, while Turner is barred from praying "in Jesus' name."
It asks the court to declare the city's prayer policy unconstitutional, and to order Mayor Tom Tomzak to put Turner back in the prayer rotation.
Turner said yesterday that he views the vote to adopt the prayer policy--a vote from which he abstained--as a "discriminatory action," and that the past two years of sitting out prayers have been "confirmation for me to the fact that my particular rights were violated."
Four of the six council members who voted on the policy are still on the council. Of them, Tomzak and council members Kerry Devine and Debby Girvan voted for the policy, and Councilman Matt Kelly voted against it.
The city has been represented at no cost in the case by the Hunton & Williams law firm and the People for the American Way Foundation.
The ACLU of Virginia has also filed a friend-of-the court brief on the city's behalf.
It argues that the prayers that open council meetings are "quintessential government speech" and that "Councilman Turner has no First Amendment right to use those prayers to express his personal sectarian religious briefs."
Emily Battle: 540/374-5413
Email: ebattle@freelancestar.com