Sandra Day O'Connor Hears Fredericksburg Prayer Case

Retired Supreme Court justice Sandra Day O'Connor joined a federal appeals court panel that heard the case of a Fredericksburg City Council member who sued the city after he was barred from invoking the name of Jesus in a council prayer.

O'Connor, appearing yesterday on the three-judge panel of the U.S. Court of Appeals for the 4th Circuit in Richmond, quizzed the council member's lawyer on issues related to limits on legislative prayer. She asked the lawyer whether he could cite any cases in which such prayer was not considered government speech, attorneys for both sides said, and he answered, "No."

The Rev. Hashmel Turner, a Baptist minister who has been on the council since 2002, sued in January 2006, saying the city violated his free speech rights and infringed on his religious beliefs when it passed a measure barring sectarian prayer in council invocations.

Attorneys for the city, citing previous court rulings, argue that a City Council member speaking during a city meeting is making official -- not private -- speech.

The city approved its policy after a resident complained and the American Civil Liberties Union noted recent federal court rulings limiting sectarian prayer. The Supreme Court has explicitly permitted prayer before legislative meetings, but debate has centered on what kind is allowed.

Johan Conrod, Turner's attorney, told the panel it is unconstitutional for the city government to exercise such control over prayers.

"Fredericksburg didn't draft an actual prayer, but it went close in that it dictated content," he said after the hearing.

"Counselor Turner's argument is that the sky is green. Looking at the body of case law, he says the sky is green. It's blue. No amount of saying it's green will make it such," said Judith E. Schaeffer, legal director for People for the American Way. The group argued on behalf of Fredericksburg in the case.