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Written by Don Byrd

[UPDATE 3/1: The entire 6th Circuit voted to re-hear the Jackson County case.]

The church-state issues surrounding invocations that open official government meetings remain areas of significant dispute, as courts continue to wrestle with the Supreme Court’s 2014 ruling in Town of Greece v. Galloway, in which the Court upheld a policy that allowed sectarian prayers to be delivered by area clergy. In Bormuth v. Jackson County, The 6th Circuit Court of Appeals yesterday added to the ongoing legislative prayer conversation, ruling unconstitutional the invocation practice of the Board of Commissioners in Jackson County, Michigan. 

This case is an important reminder that in Town of Greece, the Supreme Court did *not* hold that all legislative prayer is lawful. Important constitutional limits remain to protect religious liberty. In its opinion, the 6th Circuit found that in this case those limits had been crossed. The Court emphasized a number of facts that distinguish the Jackson County case from the Town of Greece case, including the fact that the Jackson County Board opens each meeting with a prayer delivered by one of the nine commissioners. The Court found that be a significant difference. From the 2-1 opinion (citations removed):

When the Board of Commissioners opens its monthly meetings with prayers, there is no distinction between the government and the prayer giver: they are one and the same. The prayers . . . are literally “governmental speech.” Legislator-led prayer at the local level falls far afield of the historical tradition upheld in Marsh and Town of Greece. The setting of the prayer practice by the Jackson County Board of Commissioners—a local governing body with constituent petitioners in the audience—amplifies the importance of the identity of the prayer giver in our analysis, and heightens the risks of coercion, as borne out by the facts in this case.

The Court went on to hold that the practice also fails constitutional scrutiny because it is improperly coercive, for three reasons:

First, the Board of Commissioners directs the public to participate in the prayers at every monthly meeting. . . In Town of Greece, “board members themselves stood, bowed their heads, or made the sign of the cross during the prayer,” but “they at no point solicited similar gestures by the public.” Rather, it was the clergy who asked audience members to participate in the prayer. The Supreme Court reasoned that, because this direction came from the clergy, it was inclusive, not coercive. Here, it is the Board of Commissioners, and the Board of Commissioners only, that tells the public to join in the prayer. What is more, these instructions are almost always from the Chairman. The Chairman presides over the meeting; his words are cloaked in procedural formality. The words “rise” and “assume a reverent position” from the Chairman, therefore, are not mere suggestions, they are commands. . . 

Second, the Board of Commissioners has singled out [the plaintiff, Peter] Bormuth for opprobrium. During a public meeting, a Commissioner stated that Bormuth’s lawsuit was an “attack on Christianity and Jesus Christ, period.” Another Commissioner characterized Bormuth’s lawsuit as “political correctness nonsense” and complained that he has “had political correctness jammed down [his] throat.” That Commissioner continued:

The Federalist Papers, if you read them, tell[] me that it is your duty to disobey an illegal law. And it has taken some nitwit two hundred-and-some years to come up with an angle like this to try to deprive me or other people, of my faith, of my rights.

In disparaging Bormuth, the Board of Commissioners’ message is clear: residents who refuse to participate in the prayers are disfavored. Indeed, when Bormuth expressed his belief that the Board of Commissioners was violating the First Amendment during the public-comment period of the August 2013 meeting, one of the Commissioners made faces and then turned his back on Bormuth, refusing even to look at Bormuth while he spoke.

Third, Bormuth has submitted evidence suggesting that the Board of Commissioners has “allocated benefits and burdens based on participation in the prayer.” Shortly after Bormuth filed his complaint, Jackson County officials nominated members for the County’s new Solid Waste Planning Committee from a pool of applicants. Although Bormuth had three years of experience working on related issues, the Board of Commissioners did not nominate him. Given that the Commissioners had publicly expressed their contempt for Bormuth, the Board of Commissioners’ decision not to nominate him could easily be interpreted as a response to Bormuth’s refusal to participate in the prayers.

Lastly, the Court acknowledged that the 4th Circuit reached a different conclusion in a similar (but not identical) case (see post here), Lund v. Rowan County (NC). But the majority stated that it found the dissenting opinion in that case the more persuasive view. The 4th Circuit has agreed to re-hear Lund en banc.