Written by Don Byrd

The entire Sixth Circuit has ruled (9-6) in favor of Jackson County, Michigan, upholding the county commission’s legislative prayer practice against a claim that it unlawfully endorses religion under the First Amendment to the U.S. Constitution. The decision in Bormuth v. Jackson County, issued earlier today, comes on the heels of an opinion from July of this year in Lund v. Rowan County, in which the Fourth Circuit reached the opposite conclusion in ruling unconstitutional a somewhat similar prayer practice. The disagreement could ultimately require the U.S. Supreme Court to step in and resolve.

Hasn’t the Supreme Court already settled the issue of legislative prayer? Well, yes and no.

In the two U.S. Supreme Court cases analyzing and upholding legislative prayer practices (Marsh (1983) and Town of Greece (2014), a member of the clergy offered the opening prayer. In the practices at issue in both Bormuth and Lund, however, county commissioners themselves deliver the invocation before meetings. The appeals courts in these more recent cases have wrestled principally with the question of whether it matters, constitutionally, who gives the prayer.

In the case decided earlier this year (Lund), the Fourth Circuit held that while a government prayer practice is not automatically unconstitutional just because commissioners deliver the invocation, it is one important fact a court should consider in its analysis. Looking at the Rowan County practice as a whole, the court in Lund struck it down as unconstitutional.

The Sixth Circuit in Bormuth, however, noting that it disagrees with the Fourth Circuit’s analysis, ruled emphatically that the identity of the prayer giver is of no legal consequence.

[W]e find it insignificant that the prayer-givers in this case are publicly-elected officials. In our view and consistent with our Nation’s historical tradition, prayers by agents (like in Marsh and Town of Greece) are not constitutionally different from prayers offered by principals.

The Court went on to conclude that the prayers also did not run afoul of the limitations on legislative prayer outlined in Justice Kennedy’s Town of Greece opinion. The prayers did not, for example, disparage any faith, they ruled, nor did the situation amount to religious coercion.

In response, the principal dissent counters by pointing to many facts it says “shows how far Jackson County’s practice strays from the historically tolerated tradition of legislative prayer.” Specifically, the dissent notes that the Board of Commissioners (and almost always the Chairman) “directs the public to participate in the prayers” by asking them to “rise” and “assume a reverent position.”

In addition, the dissent found the Board unlawfully “singled out” the plaintiff, Peter Bormuth, “for opprobrium” during an incident in which a Jackson County commissioner made a face of disgust and turned his back on Bormuth while he expressed his opposition to the prayer practice. (The Supreme Court’s ruling in Town of Greece specifically warned against singling out dissidents for opprobrium.)

The dissent in Bormuth quotes the dictionary definition of “opprobrium” in support of its argument, writing:

The majority appears to argue that a Commissioner turning his back on Bormuth and refusing to listen to him say that Jackson County’s prayer practice disrespected non-Christian citizens is somehow distinct from singling him out for opprobrium. My only response is to ask the reader to imagine making an earnest, public plea to someone in a position of authority—a plea not about just any topic, but about a concern that the authority figure is disrespecting your religious beliefs, or disrespecting some value that you consider central to your life and perhaps definitive of who you are. You might not be troubled if the person told you that they disagreed with your concern, or if they listened but said nothing in response. But imagine if, instead of listening, they made a face of disgust and turned around, refusing to face you. Would you feel like this government official had expressed “contempt or distaste usually mingled with reproach and an implication of inferiority”?

The U.S. Supreme Court could ultimately take up either or both of these cases, perhaps to resolve the question of whether it matters who delivers the invocation opening a government meeting or to clarify the proper analysis of religious coercion in the legislative prayer context. Not having heard a legislative prayer case for 30 years following Marsh, it would mark the second such case since 2014, if they do.