By Michelle Boorstein
Sunday, December 9, 2007
LORD JESUS, THIS IS ALL FOR YOU, THE REV. HASHMEL TURNER THOUGHT as he walked through the swinging glass doors into Fredericksburg's City Hall. Waiting there was a small gaggle of Washington television reporters who rushed over to Turner the moment he walked in. Turner froze.
Councilman Turner, demanded one with a microphone, are you going to pray tonight? What kind of prayer will you give?
Typically, the reserved Baptist minister speaks slowly, in a rich, low tone. This time, his words came faster. "I'm standing firm in my faith," he told them. There would be no compromise. Jesus was being systematically erased from America's public places, and what was Turner worth if he didn't fight it, no matter the cost?
When he entered the City Council chambers, Turner saw about 15 people attending the meeting for routine issues: a woman opposing a planned downtown hotel, a man seeking a special-use permit for a remodeled deck. They'd all read the newspaper articles about the controversy brewing over Turner's invocation, and their whispered guesses about what he'd do that night flew around the room.
For two years, Turner had been struggling with how to pray before council meetings. He wanted to be true to his faith but wasn't sure what to do after a woman lodged a complaint about his references to Jesus. He'd taken himself out of the council's prayer rotation, then reinserted himself, haunted by the thought that he was abandoning Jesus to avoid a confrontation.
Moments before the July 27, 2004, City Council meeting began, Turner had talked privately in the hallway with Mayor Thomas Tomzak. Tomzak, who had been elected only two months earlier, didn't relish being the one to deliver bad news. The city attorney, the mayor told Turner, was recommending that Turner not deliver the opening invocation, unless he was willing to keep it general. Nonsectarian. No references to Jesus Christ, Tomzak said. The American Civil Liberties Union was threatening to sue the city, and federal case law was apparently unclear. Educated in Catholic schools himself, Tomzak made it plain that he felt queasy telling a minister how to pray.
"I understand," Turner, now 58, remembers telling the mayor. Turner was too hurt to argue. There was no way he was changing his prayer -- that much he knew. He'd rather stay silent. But part of him still didn't believe Jesus had really been banished from the council chambers of the town where he'd grown up. Where church members had helped feed him when he was a dirt-poor youth. Where he was saved at a Billy Graham crusade in the spring of 1968 at a theater on Caroline Street. Where he had just been ordained a preacher for the First Baptist Church of Love.
When the council members took their seats on the horseshoe-shaped dais, the mayor asked for 10 seconds of silence for U.S. soldiers who "at this very moment are in harm's way." Then would come the prayer. The room grew still, and Turner waited, continuing to hope that Tomzak would call on him.
"Mrs. Deborah Girvan will now lead us in prayer," Tomzak announced as the 10 seconds expired.
Councilwoman Girvan, in a mint blazer, then launched into a general, if slightly odd invocation, something about work and "bearing the burden and heat of the day." Jesus Christ went unmentioned. While Girvan spoke, Turner kept his eyes shut, stretched his arms in front of him and silently mouthed his own prayer, continuing even after Girvan was done with hers.
He would be quiet on this night, but not forever. He'd begun to believe that he wasn't the only Christian under assault by the secular world: Evangelizing in the military was being attacked; Christmas trees were being removed from airports; students were being prevented from sharing their love of Jesus in their classes. But many Christians were fighting back. These days, Turner concluded, the battleground for America's soul was being waged in the nation's courtrooms as well as in its churches.
Turner had transformed himself from a hard-pressed orphan to clergyman and respected local official, all with God's guiding hand. Now, it seemed, God had selected a new role for him.
He was to be a plaintiff.
WHEN WORD FIRST SPREAD AMONG FREDERICKSBURG CHURCHGOERS that the reverend on the City Council was in a bind, a number of people offered Turner the same suggestion: Call John Whitehead.
John Wayne Whitehead has been defending Christians in court for 25 years. His Charlottesville-based Rutherford Institute helped pioneer the Christian legal movement, though Whitehead remains better known for representing Paula Jones in her sexual harassment suit against President Bill Clinton. Yet, despite his conservative credentials, Whitehead hardly marches in lockstep with his fellow conservative Christians. He describes the much-hyped war on Christmas as "absurd" and calls the Bush administration "the worst free speech regime since, well . . . ever."
He's as much a contrarian as he is a Christian. For a while, Rutherford published a magazine called Gadfly that showcased Whitehead's admiration for aspects of popular culture that some Christians find anti-religious: the music of the Sex Pistols, the gruesome paintings of Francis Bacon, the movies "Dr. Strangelove" and "Blood Simple." Whitehead got a lot of criticism for the magazine, but he says publishing it was one of the most exhilarating experiences of his life.
"If you believe God created people, he created creative people," says Whitehead, who has always identified with outcasts and people who push the envelope of what's acceptable. "Christians might say, 'We don't like this person or that person,' but I say these are the kinds of people Jesus hung around with, the people who certain classes of people despised."
He's been on the fringe for much of his own life. Less than a decade before founding the Rutherford Institute in 1982, Whitehead was a self-described "Marxist left-wing radical" who subscribed to the Daily Worker, worked for the ACLU and had accepted sandwich bags of homegrown pot in lieu of payments from clients. The lanky Southerner says he was so hostile to Christianity that he wouldn't let his church-going wife, Carol, mention Jesus in their house. But things changed dramatically in 1974, when Whitehead, a science fiction and fantasy fan, bought a copy of The Late Great Planet Earth, a bestseller by evangelical writer Hal Lindsey that predicted the apocalypse through war with Russia. Whitehead was fascinated by the notion of apocalypse -- something urgent, revolutionary and, for him, transformational. "I was a '60s radical, so it was like, okay, let's get this moving; let's have a revolution." Within a week of reading the book, Whitehead gave himself to Christ and moved to California to study with Lindsey, and he embraced his new faith with a ferocious militancy.
"At one time Christians had command of the United States. Through toleration they receded until the non-Christians grew too strong to combat any longer. Once the non-Christians were in power they began eliminating Christianity from the system . . . This land can once again be a Christian nation. A reformation is at hand. All that is needed is the dominion-oriented Christian man," he wrote in his book The Separation Illusion: A Lawyer Examines the First Amendment in 1977.
His beliefs have evolved in the last three decades. He is still a strong Christian, he says, but doesn't belong to any denomination or church. "The farther I got away from [Lindsey's book], things started looking a little gray. It's like waking up from a three-day drunk." Now, he says, "I just focus on what Jesus taught. When Christians call me, I say, 'Have you read the New Testament?'"
Turner, who works as a driving instructor at Fort A.P. Hill Army installation, didn't know that much about Whitehead when he called him in 2003 to seek his advice. Do I have the right to ask aloud for Jesus's blessing on City Hall proceedings? Turner asked.
Absolutely, Whitehead assured him.
The two talked by phone on and off for months. Whitehead was struck by Turner's humble style. The minister didn't want his speech censored, but he didn't want to cause a fuss, either. He didn't want to put his own needs above anyone else's, Whitehead recalls.
"He wanted to be a good Christian," Whitehead says. "I told him, 'I know a lot of good Christians who fight.'"
Eventually, Turner climbed into his black Hummer (cars are a vanity, from the Hummer to his candy-apple red '64 Chevy Impala to the model-car collection Turner shares with his grandson) and drove to Charlottesville to meet with Whitehead. He doesn't remember what he thought about the "Speak Truth to Power" bumper sticker plastered on the door to Whitehead's office (and available for sale on Rutherford's Web site) or the plastic eyeballs and shrink-wrapped plastic Jesus on his desk. Turner remembers being struck by Whitehead's stories about his conversion and his decision to found Rutherford. This is a man of genuine faith who will help me, he concluded.
Together, the unconventional lawyer and the reticent minister began edging toward a lawsuit that could help define one of the most disputed areas of American religious expression: legislative prayer.
AT RUTHERFORD, TURNER FOUND HIMSELF ENTERING A WORLD HE BARELY KNEW EXISTED, a world largely created in the last 20 years: the Christian legal movement. It is populated by endless litigants: a Virginia teacher barred from posting information about Christianity in class, a Nevada high school valedictorian prevented from speaking about Jesus in her graduation speech, a New York pastor forbidden to use a local public school building for Bible study. It is driven by a proliferation of law firms created to defend Christians, firms that pump out millions of e-mails, phone calls and direct-mail solicitations to raise money for the fight. It is bolstered by dozens of new books, scholarly articles and blogs about religion and the courts.
When Whitehead founded Rutherford 25 years ago, his idea that U.S. courts were a dangerously secularizing force didn't have much juice among evangelicals. Christian groups were more focused on changing the world through prayer than litigation.
"It was like walking through the desert," Whitehead says of his early efforts to get support and funding. "People thought I was a little nuts. They thought, 'Jesus wouldn't sue anyone.'" By today's standards, Rutherford, with an annual budget of $1.9 million, a staff of 15 and a stable of 250 attorneys -- many from high-status firms -- who work pro bono, is no longer a big player. The heavies include the Alliance Defense Fund (founded by James Dobson), with an annual budget of $29.5 million; the American Center for Law and Justice (founded by Pat Robertson), with at least 1 million members on its mailing list; and the Thomas More Law Center (started by Domino's founder and Catholic activist Tom Monaghan), whose Web site says, "We live in a culture increasingly hostile to Christians." None of these groups existed 18 years ago.
The movement's driving credo is that Christians, who, according to the American Religious Identification Survey, make up more than three-quarters of the U.S. population, are victims of discrimination by an omnipotent secular culture that wants to whitewash the Founding Fathers' Christianity and exclude God from the public square. Public displays of the Ten Commandments or the reference to God in the Pledge of Allegiance simply acknowledge the role Christianity played in this country's founding principles, these groups argue. It does not amount to an unconstitutional "establishment" of religion at the expense of religious minorities.
"It became evident very early that once you show up in court, and you make arguments, you can win. We just hadn't been showing up for decades," says Mathew Staver, an evangelical pastor and lawyer who founded the litigation and advocacy group Liberty Counsel in 1989. The group is about to open its fourth office and has 700 volunteer attorneys to handle the 50 to 60 cases in active litigation and the 200 others that are being pursued out of court at any one time. It also uses students at the three-year-old law school at evangelical Liberty University that Staver helped found with the late Jerry Falwell.
Of the cases that Liberty Counsel handles, 95 percent are resolved out of court. Of the cases that have gone to court in the past five years, Staver says, the firm has won 92 percent. Christian legal groups now file about 20 percent of all friend-of-the-court briefs entered in Supreme Court religious freedom cases, up from almost zero in 1980, according to Kevin den Dulk, a political science professor at Grand Valley State University in Allendale, Mich., who researches the rise of such firms.
Christian firms claim credit for several key Supreme Court rulings. In 1995, the high court ruled that it was unconstitutional to ban a student-run Christian newspaper at the University of Virginia from using student activity fund money. The court said the mandatory fees are akin to a public forum and that religious speech is protected like other speech. In 2001, it ruled that schools may not bar a Bible group called the Good News Club and other religious groups from meeting on public school campuses. Again, the decision focused on free speech. Liberty Counsel filed amicus briefs in both cases.
Despite these successes, members of the Christian legal movement say they are just beginning to level the playing field and that their gains could disappear if they don't remain on the offense.
There are fewer national groups advocating for a separation of church and state, but they have been pursuing their cause decades longer. The ACLU, founded in 1920, and Americans United for Separation of Church and State, founded in 1947, tangle regularly with the Christian legal movement, though it can be difficult to compare each side's resources and impact. With 550,000 members and an annual budget of $100 million, the ACLU is big, but religious freedom cases are only a fraction of what it does. Americans United is far smaller -- with 75,000 members and an annual budget of $5.8 million -- but focuses solely on defending the separation of church and state.
Barry Lynn, executive director of Americans United, says he thinks the Christian legal groups have lurched ahead in funding in the last five years. He also believes their impact is growing. "These firms are becoming more successful with the infusion of ultra-conservative judges into federal courts," says Lynn, a lawyer and a minister within the United Church of Christ, a liberal denomination that has voiced support for gay marriage. "They have an endless supply of huge givers who believe that we're on the cusp of fundamentally changing the idea of church and state. So they go and fundraise, and say they're one or two Supreme Court justices or one federal circuit away from transforming the landscape."
In the last decade, Lynn says, Christian legal groups have succeeded in establishing the idea in courts that religious expression cases are freedom of speech cases. That is a seductive but fundamentally flawed argument, he says. The framers of the Constitution included the free exercise of religion clause and the principle of separation of church and state in the First Amendment because they wanted to make clear that religious speech is not like all other speech -- religion has to be protected but not promoted, Lynn argues.
He believes the Christian legal movement's ultimate goal is to create a body of rulings that make non-Christians second-class citizens. "There is just a refusal to recognize how diverse the nation is and how seriously [non-Christians] take their faiths," says Lynn, who doesn't think Whitehead is all that different from his colleagues. "He has promoted the mythology that the federal government is taking away the rights of Christians especially, and all that is urban mythology," Lynn says. "Christians are in control in most places."
Groups like the ACLU would reject being characterized as hostile to religion. Religion, they argue, is more likely to flourish when it is not entangled with government -- when there is absolutely no question that government is endorsing or sponsoring religion. For the ACLU, that can sometimes mean advocating for more religious expression, not less. The group has supported a Muslim woman in Michigan who wanted to wear modest clothes in a public pool; a Wiccan in Chesterfield County, Va., who wanted to give the opening invocation at supervisors' meetings; and an elementary school student in New Jersey who was prohibited from singing "Awesome God" in a voluntary, after-school talent show.
"There has never been more religious expression in public places than there is now," says Kent Willis, executive director of the Virginia ACLU, who thinks the rise of Christian legal firms rests on a phony threat that religious speech is being suppressed. "They make an argument that I think is entirely specious, but it has a great deal of energy in the culture right now."
Whitehead has his own issues with the movement he helped found. He worries about the intense focus on Christians as victims. The real problem, he says, is creeping limits on religious speech in general, particularly at a time when America is becoming more religiously diverse. Court rulings are sketching out a bland, state-sponsored "civil religion," where God is welcome so long as he/she/it has no recognizable attributes or names and can be defined by an all-powerful state, he says. Whitehead views the big Christian law firms as too market-driven, afraid to take religious freedom cases defending Muslims or gays or anyone their contributors don't like.
Though the vast majority of Whitehead's clients are Christians, he says he's gone to court on behalf of Jews. He offered to represent a Wiccan woman who was fighting to put a Wiccan symbol on her husband's headstone at Arlington National Cemetery. (The Department of Veterans Affairs yielded to the request earlier this year.) She didn't hire him, but he wrote an article about her case in Christianity Today, an evangelical magazine, arguing: "Whatever one's opinion might be about the Wiccan faith, there should be no doubt in anyone's mind that the First Amendment to our U.S. Constitution provides for religious freedom for all individuals of all faiths -- whether they are Christians, Jews, Muslims, atheists, Wiccans and others."
Whitehead says his views have made him an outsider among Christian and separationist civil liberties litigators alike. "I feel like I'm in a valley," he says, "and people are shooting down on me from all sides."
In Turner, Whitehead sees someone else under attack. "He couldn't resist doing the right thing. He had to say Jesus's name. He could have just waltzed along," Whitehead says. "Most Christians I know cut bait and run, but he didn't."
THE ORIGINS OF HASHMEL C. TURNER JR. V. THE CITY COUNCIL OF THE CITY OF FREDERICKSBURG lie in the spring of 1968, when an 18-year-old Turner was adrift in hopelessness. The eldest of 10 siblings, Turner had lost his mother the year before to cancer. Even before she became sick, she'd struggled to raise them on her own. Their father was mostly gone, working as a rigger in Washington.
In their simple Fredericksburg neighborhood of Mayfield, the Turners were known as "the poor family." Nearby churches would donate canned goods to the children, who sometimes put food coloring in water as a pretend snack. Turner tried to help out, contributing to the family's meager income by mowing lawns, selling newspapers and collecting bottles to recycle. After their mother died and the state scattered the younger siblings to foster homes, Turner became their advocate, monitoring their living conditions and, in one case, getting social services to yank a few from an abusive home.
But Turner, too, was desperate for direction. His mother had raised him as a Baptist, and his public school teachers encouraged him to recite a Bible verse and say a prayer each morning. Even so, Christianity felt more like a tradition than a deeply held faith. And with his mother's death, the bottom had dropped out of his world. That spring, he was uncertain he would even graduate from high school.
"I had kind of given up," he remembers. He was working at J.J. Newbury department store downtown when he heard that a revival called the Billy Graham Crusade was coming to Fredericksburg. Turner wasn't sure how he felt about God at that point, but he figured: Why not go?
He shakes his head as he relives the memory of that revival: its welcoming warmth, the singing and preaching, and, most amazingly for a young black man in a segregated town, the sight of black and white people praying together, for one another. That night didn't bring fireworks; it felt more like a calmness coming over Turner when he agreed to accept Jesus Christ as his savior. He says he simply understood that he was going to be okay. He was going to finish high school. He was going to make his mother proud. And he was going to give his life to Christ.
In the four decades that followed -- years spent driving a truck to support his wife, daughter and youngest brother, serving as a church deacon, preaching sermons and finally becoming an ordained Baptist minister -- Turner often asked himself why Jesus had saved him and whether he was doing what Jesus wanted. When he got involved in combating crime in his neighborhood and decided to run for a seat on the Fredericksburg City Council in 2002, part of the answer became clear.
A few months after Turner took office, the prayer rotation came to him for the first time. "All wise and all merciful God, our dear heavenly Father," began his request on August 13, 2002, seeking holy guidance to "cleanse our hearts and our minds . . . to make the right decisions." He mentioned the looming war in Iraq and the "turbulent times," and asked for prayers for state, national and world leaders. "We realize that it is all in your care," Turner said before ending his prayer: "In Jesus's holy name. Amen."
Shortly after, a woman in Turner's district contacted him to say his explicit reference to Jesus Christ had offended her. He was shocked, having never been exposed to the viewpoint "that just mentioning the name of Jesus Christ would offend someone," he says, then stops and chuckles softly. "I'm just a country boy."
Turner wasn't likely the first person to bring Jesus Christ into the City Council chambers. When the city created opening prayers in the early 1950s -- city records don't say why -- clergy delivered them. In the late 1950s, council members took over and have been delivering them ever since. Longtime city employees agree that, over the course of 50 years, others have prayed in the name of Jesus without provoking an objection. "The world used to be a much kinder, gentler bunch," says Debbie Naggs, who recently retired after 22 years as clerk for the council.
Turner's first reaction to the complaint was to take himself out of the prayer rotation. Turner is by nature self-effacing. He is often silent during council meetings, and, even in his church, he's happy to turn a service or Bible study over to a deacon or assistant pastor. Until his public prayers were called into question, he hadn't given much thought to religious freedom issues. He had never attended Religious Freedom Day, an annual celebration in Fredericksburg that marks a significant chapter in the city's history.
In 1777, a committee that included Thomas Jefferson met in Fredericksburg to revise Virginia's laws as the colony prepared to become a state in a new nation. At the time, the Anglican Church was officially recognized by Virginia as the established church -- a preference that Jefferson vigorously rejected. He drafted a "Bill for Establishing Religious Freedom," proposing that "no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities."
Jefferson's bill later became one of the tenets of the First Amendment, which established the landmark protection of religious freedom: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ."
For 10 months, Turner didn't pray at council meetings. He decided he'd rather take a pass than alter the dialogue he had with God. Or, as his wife, Alice, puts it, "If you don't pray to Jesus, you're just praying to air."
But by spring 2003, his conscience was gnawing at him, and he put himself back in. "In the name of Jesus Christ, we thank you for what you are going to do. Amen," he prayed before the council meeting on July 23, 2003. Five days later, a letter from Kent Willis at the Virginia ACLU arrived. He'd received a complaint from the same woman who'd been in contact with Turner.
Willis, who lives in Fredericksburg, told Turner that he'd voted for him, but that Turner needed to alter the wording of his prayers. "To be blunt, opening a city council meeting with a sectarian prayer is not permitted under the constitutional doctrine of separation of church and state," Willis wrote. While Turner had the same right as any other American to express his religious beliefs, Willis said, an invocation by a government official for a government meeting is essentially government speech. "It must therefore be undertaken in the most inclusive and neutral manner to make absolutely certain that it is devoid of any hint of religious preference . . . when you offer an invocation that references only the Christian faith, the message to non-Christians is that they are interlopers, whether or not that is your intention."
Willis requested an assurance from Turner that he would stop praying in Jesus's name. "I thank you for your attention," the letter ended.
After reading the letter, the minister was torn. He didn't want to burden the city with a legal problem if the ACLU sued. But he also had the growing sense that God had selected him for an important mission. The more he thought about it, the more he believed that America was testing God's patience. He could see it in his own community. At the Fredericksburg schools Turner once attended, the students were dressing immodestly, speaking rudely and being consumed by a self-centered culture.
"It seems like the demonic side, the dark side is targeting our youth," he explains one Sunday after church, his voice the only sound in an empty community room. And teachers' hands are tied, he says. They can't dole out discipline as they see fit. As Turner talks, he keeps shaking his head from side to side, letting loose a vexed "Mmmm" every minute or so that seems to come from deep within. He is a worried man. He worries about war, rising violence "and all kinds of sinful things taking place." Sure, he lived through bad times: segregation, bomb shelters, the Vietnam War. But something was different. "Before, it seems like things came from somewhere outside. Now it seems like America is eroding from within."
America, he says, was founded on "God-fearingness. Our fore-fathers set us up based on Christian values and belief. And you can research that. It's there." And moving away from God would be no joke. "Rome and other empires, they just became so disobedient, and the wrath of God fell upon them, and they exist no more. And if America goes down that road . . ." Turner frowns, his forehead tightens. He lets loose a sharp "Mmmm!"
"We could be close to the time when God says: 'Enough is enough. If you don't want me in America, then I don't have a desire to protect America any longer. If you don't want me, I'm gone.'" And what if he could do something to affect that, he thought as he considered whether to take legal action. Could Jesus have brought him, an ordinary believer, into this legislative prayer confrontation to carry out an extraordinary task?
Most of Turner's colleagues on the City Council sympathized with his desire to include Jesus in his prayer. Girvan said demanding that council members stick to generic prayers "homogenized" them. Tomzak said prayers on behalf of the city -- no matter who they are from or in whose name they are made -- should be welcome. Council member Kerry Devine, however, wasn't sure how appropriate prayer was for the council chamber. "I don't look at myself or the council as a spiritual body," she was quoted as saying in the Fredericksburg Free Lance-Star newspaper. "Governing body, yes. Spiritual body, no."
To avoid a lawsuit by the ACLU, City Attorney Kathleen Dooley recommended on November 8, 2005, that the council formally ban the invocation of a specific deity. "At this time, there is no clear legal authority to permit a denominational prayer -- one invoking Jesus Christ, for example -- as part of the official meeting," she wrote in a memo to the council.
Council member Billy Withers made a motion to pass the ban. It was seconded. Is there any further discussion, the mayor asked?
I'm recusing myself from voting, Turner said softly, since this is "pretty much directly" aimed at him.
Council member Matthew Kelly was skeptical of the measure. "I have followed the rules on this and will continue to do so when I have the prayer duty. But, you know, no one has yet explained to me why somebody who believes as they do and asks that [an] individual -- whomever it may be -- bless the entire city -- why that is a bad thing?" I'm voting against it for philosophical reasons, Kelly said, but I'll follow it once it passes.
Then Withers spoke up. I have a problem with it, too, he said, but not enough of one to get us into a lawsuit "that we just don't need to be in."
Turner offered a short defense of his actions in a low, deep voice. "Yes, Mr. Mayor, to try to clear it up, I'm just referring back to my free speech rights." No one responded. A minute later, Tomzak asked council members to cast their votes. The measure passed with five yeas, one nay from Kelly and one abstention from Turner.
Two months later, Turner filed suit against the City of Fredericksburg in federal court in Richmond. The lawsuit accused Tomzak and the City Council of violating Turner's right to free speech, infringing on his religious beliefs and imposing "viewpoint discrimination" on him. The city must be banned from enforcing its policy, it said, and Turner must be allowed to pray freely before meetings.
The city had hoped to avoid a lawsuit from one side, and now was facing one from the other direction. But the legal battle hasn't become a drain on Fredericksburg's coffers. Another national advocacy group, People for the American Way, is providing free legal services for the city's defense. With money removed as a factor, most City Council members appear to personally support Turner's position. Many city residents seem to be behind Turner, too. "Whenever we go anywhere together, people always come up to him and say how happy they are that someone is taking a stand," says Tomzak. "And they look at me like I'm some sort of fascist."
EVEN AS TURNER IS BANNED FROM SAYING JESUS CHRIST'S NAME AT CITY COUNCIL MEETINGS, in Richmond, 50 miles south, the state House and Senate have no such restrictions on clergy or lawmakers who offer opening prayers. "We let them know the Senate represents many denominations, but there are no restrictions," says Susan Clarke Schaar, longtime Senate clerk.
The same is true 50 miles north, in Congress, where U.S. House and Senate chaplains have been offering invocations since 1789. These days, most opening prayers in Congress are nonsectarian and given by an official chaplain because, as the House's Rev. Daniel Coughlin puts it: "I want to offer a prayer to which everyone can say amen." But there is no ban on sectarian prayers, and guest speakers sometimes offer them.
The fact that Congress allows an invocation in Jesus's name, but the Fredericksburg City Council cannot is attributable, in part, to the unusual history of legislative prayer. The nation's first Congress explicitly established legislative prayer by authorizing the appointment of paid chaplains on September 22, 1789, three days before its members agreed on the wording of the Bill of Rights.
"Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment," Supreme Court Chief Justice Warren Burger noted in a pivotal legislative prayer case in 1983.
". . . The delegates did not consider opening prayers as a proselytizing activity or as symbolically placing the government's 'official seal of approval on one religious view.'"
Burger was writing for the majority in Marsh v. Chambers, which challenged the Nebraska legislature's century-old practice of hiring a chaplain as a violation of the First Amendment's establishment clause. It was not a violation, Burger wrote, because of America's unique history of legislative prayer and because in Nebraska "there is no indication that the prayer opportunity has been exploited to . . . advance any one . . . faith or belief." Footnotes in Burger's opinion observed that the Presbyterian chaplain in Lincoln at the time gave nonsectarian prayers and removed all references to Christ.
So, did the last significant Supreme Court ruling on legislative prayer allow sectarian prayer or ban it?
Arguments on each side of the debate tend toward the passionate, as if the U.S. Constitution or America's salvation -- or both -- are at stake. Municipal meetings all over the country have become a particular battleground, despite the fact that most people would rather mow their lawn than watch their local government in action.
In Great Falls, S.C., a Wiccan who sued the town in 2001 for offering only Christian prayers before meetings came home to find her pet parrot beheaded and a note: "You're next!" In Indiana, the ACLU sued in 2005 to stop sectarian prayer in the state legislature after a minister led the House in singing "Just a Little Talk With Jesus." In Southern California, 34 city attorneys unsuccessfully urged a state appeals court to allow sectarian prayers in a 2002 case involving the Burbank City Council.
The courts have responded to these lawsuits with rulings that seem contradictory. In 2004, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit ruled in favor of the Wiccan in South Carolina. Just because brief religious invocations have been part of U.S. tradition, wrote Judge Diana Gribbon Motz, doesn't give a legislative body "license to advance its own religious views in preference to all others." The following year, another three-judge panel from the same appeals court ruled against a Wiccan priestess from suburban Richmond who wanted to be put on the list of clergy to give prayers before supervisors' meetings, saying that a range of other religions were already represented.
No case since Marsh has challenged the constitutionality of legislative prayer itself, only specific aspects of it. How diverse or ecumenical do the prayers have to be? What about in a community that is almost all Christian?
Separationist groups such as the ACLU say they get involved in the issue only if they get a complaint. "We're not the prayer police," says Willis. "We're not looking at every prayer. There are dozens of variations on government prayer which have not been litigated."
Turner says he had no choice but to pursue a lawsuit once the City Council passed a law directed at him. "If I want my prayer to be answered, I have to pray in the name of Jesus," he explains. "If I have freedom of religion, why is it that I, as a Christian, cannot pray in City Council as my convictions lead me?" He wouldn't argue with a council member who used the word "Allah, or Buddha, or whatever," he says. "Whomever is on the prayer roster, I have no argument. I'm not going to tell anyone else how to pray."
But in the six decades since Fredericksburg council meetings have been opened with a prayer, no officials can remember a prayer being offered by a non-Christian. How would Turner feel if the majority of the council were Muslim and most of the prayers were delivered in Allah's name? He pauses for a good 10 seconds. The first thing out of his mouth is John 14:6: I am the way, the truth and the life; no man cometh unto the Father, but by me. No one gets to God except by accepting Jesus Christ, he says. So what does it mean for someone who believes America desperately needs to be praying to say that God hears only Christian prayers? "This is personal, how I feel," Turner says. "How others accept that, that is truly up to them."
Last year, U.S. District Court Judge James R. Spencer tossed out Turner's lawsuit, ruling that legislative prayers are government speech and therefore cannot advocate Christianity or any other specific religion. Whitehead says he wasn't surprised or discouraged by the judge's decision. He and Turner are appealing the ruling to the 4th Circuit appeals court in Richmond -- the same court that issued contradictory decisions in the cases involving the Wiccans. Though it's been 14 months since Turner and Whitehead filed the appeal, the court has yet to ask for oral arguments or written briefs. Regardless of how the appeals court rules, Whitehead thinks the case could wind up before the Supreme Court. "This is a wide-open question, something the Supreme Court needs to decide."
Turner says he's not worried about the outcome of the court battle. "I believe God will have the last victory in this matter, so it doesn't matter to me so much what man has to say . . . I believe God is pleased by the fact that I am willing to stand up for Jesus."
IN FREDERICKSBURG, TURNER HAS BEEN INVITED TO GIVE INVOCATIONS ALL OVER TOWN: the Chamber of Commerce annual gala, an NAACP breakfast, veterans' gatherings. The local newspaper ran two supportive editorials, including one calling Turner a "prayer warrior." One letter to the editor cited a common sentiment: anger about Supreme Court decisions in the early 1960s that banned officially led Bible reading and prayer in school.
"We as a nation have gone downhill ever since," read the letter. "If we keep pandering to be 'politically correct' and don't stick up for what is correct and take up our cross, we are doomed as a nation and a people."
Others were less enamored of the pastor and his lawsuit.
"When Christians constituting a majority allege discrimination against themselves, it doesn't meet the dictionary definition," read another letter. "It's not belief-based exclusion to exclude Jesus prayers at public meetings, rather it incorporates the American spirit and practice of insulating minorities."
But listening to most people talk about Turner's case, the legal technicalities fade to the background and a constellation of other issues appears. The subject quickly shifts from religious expression to subjects such as war or the decline of the American family. The case becomes a proxy for whatever people find troubling in the world, a political Rorschach test.
Stew Engel, a 70-year-old retired software engineer who watches Fredericksburg council meetings on TV, finds the concept of all prayer at government meetings so annoying that he offered to serve as a plaintiff for the ACLU if it sued the city.
"I remember during World War II, people used to say, 'Praise the Lord and pass the ammunition,' and I remember thinking, isn't it silly to ask for God's help in the war, and the other side is doing the same thing?" he says. "I don't like organized religion, when someone tells you what God wants."
For Mayor Tomzak, talk of Turner's case morphs quickly into a discussion of societal ills such as teen pregnancy and poverty. "We've got a lot of social problems," says Tomzak, an ob-gyn with the Rappahannock Area Health District, "and you can't do anything to modify behavior in the community because people think it's a right-wing conspiracy."
While he describes himself as something of a lapsed Catholic (who now prescribes birth control pills), Tomzak says religion in the schools and other public places used to teach values and consequences. "And when you removed that, it wasn't replaced with anything -- a moral structure. You use the word moral, and it's like using the word child molester or something."
Get Jim Pates, a longtime Fredericksburg city attorney, talking about the case, and suddenly you're in a conversation about judicial activism and the way the Supreme Court decided the 2000 presidential election. Pates, who grew up in Fredericksburg and represented the city when the Turner controversy began, thinks an opening prayer is inoffensive and the whole issue "ridiculous." However, he says, the idea of courts and laws being able to resolve this stuff is even crazier. "We do ourselves a great disservice by expecting the law to fix these things. That's why people hate lawyers and the law. We ask too much of it."
Barbara Turner, Hashmel's 55-year-old sister, thinks the case is about returning civility and kindness to a world that, in her view, can be harsh without God. Struggling to raise two children alone, while fighting a drinking problem and a general fear that kept her from driving on highways, Turner embraced God a decade ago and saw her life turned around. She thinks the Almighty -- whether you use the term God, Jesus, Allah, whatever -- has work to do, even in a city council chamber.
"People can get ugly in there," she says. "We don't want anyone to fight; even if you disagree, you can do it in the right away. Don't slam books, fists, say something you'll regret. We're asking the Lord to be among us, to open our ears so we can take him in."
At First Baptist Church of Love one chilly Sunday morning, three women sit in the community hall after Bible study. To hear the three, who all grew up in Fredericksburg, talk about the Turner case is to hear a roaring wave of nostalgia for the way the world used to be.
"Teachers can't control kids anymore because the government took God out of all these places," says Barbara Brown, now 61, a tall woman with a well-worn Bible. "You can punish kids, but back in the day, you could spank them with no one hollering child abuse. The government has taken over."
The other two women nod.
"When this country was established, it started with the Ten Commandments. If it started with one religion, it should stay that way. It wasn't a melting pot for religion, it was a melting pot for people," says her sister, Sharon Gibson, now 58.
What if the entire Fredericksburg City Council were Muslim and prayers were routinely directed to Allah, the women are asked. Would God be satisfied to be acknowledged like that?
"Everyone is praying to the same God," Gibson says without pausing.
But Carolyn Tilghman, now 55, isn't as certain. "That's what I'm not sure about, if people are praying to different gods. I'm just not sure."
TURNER WAS BEAMING AS HE TOOK HIS SEAT in the ballroom of the Richmond Convention Center on a Wednesday in January. Because of his lawsuit, he'd been invited to the annual Commonwealth Prayer Breakfast, a decades-old, privately run event attended by hundreds of elected leaders from across Virginia on the first day of the legislative session. Afterward, he'd been asked by Speaker of the House of Delegates William Howell (R-Stafford) to deliver the opening prayer for the 2007 legislative session.
For more than an hour at the breakfast, Turner nodded his head as one top Virginia official after another got up and talked about the importance of Christianity in his life.
"The founders were convinced we'd remain a special place only as long as we maintained that faith in God," said Lt. Gov. William T. Bolling, a Republican.
"As you survey the length and breadth of my life this day, raise up upon the highest hill the cross of Christ. May my eyes never be distracted from it," prayed state Appeals Court Judge D. Arthur Kelsey.
Servers in aprons stopped with their plates of eggs to bow their heads and say "amen" after a wounded Iraq war veteran told the officials he wanted "to encourage you to have faith in Christ."
A short time later at the state capitol, it was Turner's turn to praise God. He climbed a dais and looked out over the members of the House of Delegates. Standing there, in his navy suit, Turner smiled a tiny smile before asking, "Shall we bow our heads?" The delegates and their aides lowered their eyes and listened.
"All wise, all merciful and all loving God, my heavenly Father . . . Please continue to grant wisdom, knowledge and understanding to our elected officials . . . Let decisions be made to better the quality of life for all the citizens of Virginia . . . Please, dear God, meet the needs of our widows and orphans," said the pastor. "It is in the holy name of
Jesus I pray. Amen."
Michelle Boorstein covers religion for The Post. She can be reached at firstname.lastname@example.org. She will be fielding questions and comments about this article Monday at noon.