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RICHMOND--
Retired Supreme Court Justice Sandra Day O'Connor told lawyers arguing on behalf of Fredericksburg City Councilman Hashmel Turner yesterday that the city's nonsectarian prayer policy "seems perfectly reasonable."O'Connor was part of a three-judge panel who heard Turner's appeal to the 4th Circuit U.S. Court of Appeals. The judges' reactions to Turner's case did not differ greatly from those of the federal district court judge whose opinion Turner's lawyers want them to overturn.
"When you give the prayer as a county council member, you're authorized by the council to speak for the council under the conditions set by the council," said Judge Dennis W. Shedd, repeating the district court judge's sentiment that Turner's lawyers had "a pretty big hill to climb."
Throughout this case, Turner's lawyers have tried to argue that the prayers that open City Council meetings are not government speech, and therefore the constitution's protections of free speech prohibit the government from dictating their content.
But U.S. District Judge James R. Spencer ruled in 2006 that the prayers are government speech, and that the city's nonsectarian policy is actually required to keep it from violating the establishment clause of the constitution, which prohibits a government from establishing a religion, or showing preference of one religion over another.
Johan Conrod, speaking on Turner's behalf, was interrupted several times as he tried to argue that prayers before council meetings aren't government speech.
The three judges challenged him repeatedly to find a federal case where legislative prayers had not been treated as government speech.
"This is government speech," said Judge Diana Motz. "There is no free expression right."
Conrod also said the city's policy, which states that all opening prayers by council members are to be "nondenominational," is too vague to be effectively enforced.
He pointed out that council members still reference "almighty God" and "Heavenly Father" in their prayers, and said, "The mere use of the word Jesus isn't itself a denominational term. It encompasses many denominations."
Attorney Robert Rolfe, representing the city, told the judges that "every issue in this case has been decided, and there's really nothing left for this court to decide."
His argument was much shorter than Conrod's, and he said after the arguments that he felt good about the city's case.
The judges could rule to either uphold or overturn the district court's ruling at some point in the next few months. If the district court ruling is upheld, Turner and his attorneys could still appeal to the full 4rth Circuit Court of Appeals, or to the U.S. Supreme Court.
The prayer issue arose in Fredericksburg five years ago, when a resident complained to the American Civil Liberties Union that Turner was invoking Jesus Christ in his opening prayers. The ACLU threatened to sue the city if that continued, so the council adopted a nondenominational prayer policy, and Turner was taken out of the prayer rotation.
Turner was present for yesterday's arguments, but said he needed time to digest them before weighing in on what he'd heard.
Turner is being represented by the Charlottesville-based Rutherford Institute, and the city's counsel is being provided at no cost by the Hunton & Williams law firm and the People for the American Way Foundation.
Emily Battle: 540/374-5413
Email: ebattle@freelancestar.com
