Joyner v. Forsyth County

My friend and former colleague Kevin Walsh (Richmond) has an interesting post on Joyner v. Forsyth County, a recent Fourth Circuit case holding unconstitutional (because unduly sectarian) the practice of legislative prayer at the meetings of the Forsyth County (North Carolina) Board of Commissioners. As Kevin notes, the Fourth Circuit's opinion has an unusual disagreement between Judge J. Harvie Wilkinson and Judge Paul Niemeyer (son, by the way, of the great political theorist Gerhart Niemeyer). In addition to the usual Establishment Clause issues surrounding legislative prayer, the case poses a set of issues about religious pluralism and civil religion (as Kevin suggests, is the ghost of Thomas Jefferson haunting the Fourth Circuit?). Go read the opinion and Kevin's post, but here's the conclusion to Judge Wilkinson's opinion:

George Washington once observed that "[r]eligious controversies are always productive of more acrimony and irreconcilable hatreds than those which spring from any other cause." Letter from George Washington to Edward Newenham (June 22, 1792). As our nation becomes more diverse, so also will our faiths. To plant sectarian prayers at the heart of local government is a prescription for religious discord. In churches, homes, and private settings beyond number, citizens practice diverse faiths that lift and nurture both personal and civic life. But in their public pursuits, Americans respect the manifold beliefs of fellow citizens by abjuring sectarianism andembracing more inclusive themes. That the Board and religious leaders in Forsyth County hold steadfast to their faith is certainly no cause for condemnation. But where prayer in public fora is concerned, the deep beliefs of the speaker afford only more reason to respect the profound convictions of the listener. Free religious exercise posits broad religious tolerance. The policy here, as implemented, upsets the careful balance the First Amendment seeks to bring about.

And here's the conclusion to Judge Niemeyer's dissent:

I respectfully submit that we must maintain a sacred respect of each religion, and when a group of citizens comes together, as does the Forsyth County Board of Commissioners, and manifests that sacred respect—allowing the prayers of each to be spoken in the religion’s own voice—we must be glad to let it be. The ruling today intermeddles most subjectively without a religiously sensitive or constitutionally compelled standard. This surely cannot be a law for mutual accommodation, and it surely is not required by the Establishment Clause.