Retired U.S. Supreme Court Justice Sandra Day O'Connor got straight to the point yesterday during a federal appeals hearing in a prayer case involving a Fredericksburg City Council member who sued his colleagues.

"Is there any case you've found of legislative prayer not evaluated as government speech?" she asked attorney Johan Conrod, who is representing Fredericksburg Councilman Hashmel C. Turner Jr., who also is a Baptist minister and claims his individual free-speech and religious rights were violated.

"No," Conrod replied before the three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond.

"I can't, either," observed O'Connor, who as a retired justice has the opportunity to sit on appellate panels.

Turner sued his council colleagues in January 2006 over his desire to invoke the name of Jesus in prayers led by council members on a rotating basis at the start of meetings. He contends Fredericksburg City Council's policy of nonsectarian prayer violates his free-speech and religious rights because he was forbidden from mentioning Jesus.

After the policy was adopted, Fredericksburg Mayor Thomas Tomzak removed Turner from the prayer rotation because he believed the councilman would not abide by the new rule, Turner's lawsuit alleges.

U.S. District Judge James R. Spencer ruled against Turner in August 2006, writing that the councilman's prayer amounted to government speech, not private speech, and therefore violated the Establishment Clause of the Constitution. The clause, in the First Amendment, states that Congress shall make no law respecting an establishment of religion, or prohibit the free exercise thereof.

In court yesterday, Judge Dennis W. Shedd said a council member leading a prayer at a meeting is "speaking . . . as an agent of the government."

Conrod asserted that the council's policy, which it adopted in November 2005 after the American Civil Liberties Union threatened legal action, went too far in limiting Turner's individual rights.

"At one end of the spectrum, there is some individual speech" because council members each craft their own prayer, he said.

Robert M. Rolfe, an attorney from Hunton & Williams who is representing the city, told the judges he believes the case is clear-cut, based on previous cases. "Every issue in this case has been decided," he said.

Rolfe cited a South Carolina case in which the 4th U.S. Circuit Court of Appeals ruled in 2004 that prayers invoking Jesus at a town meeting were unconstitutional. The U.S. Supreme Court declined to hear the town's appeal in the lawsuit, which was brought by Darla Kaye Wynne, who practiced Wicca.

Outside court, Conrod said a ruling could come in about two months. "It's an uphill battle," he said.

Turner said, "I'm just hoping that as they review it that it's favorable to us."

All three men said they were honored to appear before O'Connor, who joined Shedd and Judge Diana G. Motz in the customary stepping down from the bench to personally greet the parties at their respective tables after hearing arguments.

Hunton & Williams and People For the American Way provided legal representation to the Fredericksburg City Council. The ACLU and Americans United for Separation of Church and State filed a joint friend-of-the-court brief in the case.

Turner is represented by the Rutherford Institute, which filed the lawsuit on his behalf.

Contact Kiran Krishnamurthy at (804) 649-6810 or kkrishnamurthy@timesdispatch.com.