Judges Skewer County on Official-Led Prayers

CINCINNATI (CN) — Sixth Circuit judges tackled a Michigan county Tuesday that lets commissioners open meetings with prayers.

Peter Bormuth brought the case three years ago pro se against Jackson County, Michigan, over the county commissioners' practice of beginning their assemblies with a Christian prayer.

Bormuth says one commissioner called him a "nitwit" when he raised concerns about the prayers, which Bormuth said are prompted by a commissioner and always espouse the tenets of Christianity.

With a federal judge having granted Jackson summary judgment, Bormuth is seeking a reversal now from the Sixth Circuit.

Jackson County's attorney Richard McNulty told the federal appeals court Tuesday that Bormuth was off base on several points, including that all the prayers were Christian.

Of a 31-prayer sampling, only 13 of the prayers explicitly mentioned Jesus Christ or the Holy Spirit, and all but two merely "requested guidance in legislative duties," McNulty said, citing evidence from the record.

"No prayer preached conversion, denigrated nonbelievers or threatened condemnation," the attorney added.

Bormuth, who argued on his own behalf, claimed that all of the prayers "advanced the Christian faith" and are unconstitutional because the commissioners recited them themselves.

"The commissioners cannot separate themselves from the government," and therefore cannot lead the opening prayer, Bormuth said.

McNulty countered that the county's makes a point of issuing a "call to the public" at each meeting, providing an opportunity for those of other faiths to express their beliefs and opinions.

Any citizen is given up to three minutes in these "calls," and is allowed to speak on any subject, as long he or she does not disturb the peace.

Bormuth used one of these calls to criticize the commission's practice, during which he claims a commissioner turned his back on him.

McNulty said a video recording of the meeting did not show the alleged incident, and that Bormuth called Christianity "meaningless" during his speech.

In his rebuttal, Bormuth refuted the claim and instead told the panel he was quoting Thomas Jefferson.

Sixth Circuit Judge Jane Branstetter Stranch questioned McNulty about the behavior of the commissioners and whether it should be considered by the court when determining the prayers' constitutionality.

McNulty replied that the commissioner who turned his back "is one of nine, and only a part of group decisions."

When there is a lack of evidence "of actual coercion, the court considers only the prayer ... and we're not even close to violating the Establishment Clause," McNulty added.

Judge Stranch told the court she "struggling with the test."

"We have to look at the totality of the circumstances and not just the prayer," she added.

McNulty closed his argument by reminding the panel there is no evidence that Bormuth was retaliated against because of his statements, and that "the motivations of a single commissioner are never attributable to the entire commission under Michigan law."

Bormuth's is also challenging the commission's practice of attendees to "please rise" and "assume a reverent position," directions he says coerce participation.

Sixth Circuit Judge Richard Allen Griffin disagreed.

"I noticed you stood today when the court officer said 'please rise' and 'God save this honorable court," Bortmuth said. "Is that much different?"

Bormuth replied: "Yes, the court official is not an elected member of the government."

Sixth Circuit Judge Karen Nelson Moore continued the line of questioning. "Does the word 'please' mean it is at the audience's discretion?" she asked.

Bormuth called it "equivalent to a command."

"I am the only one that does not rise," he added.

The court also granted attorney Gregory Lipper time to argue on behalf of Americans United for Separation of Church and State, a group that filed an amicus brief.

Lipper told the panel that the distinction between a chaplain or a commissioner leading the prayer is paramount to the case, as the audience would be "far more compelled to join in the prayer" to advance their causes.

Judge Griffin questioned whether a single commissioner would hold such sway over the entire commission's decision on a certain issue.

Lipper responded that, in this case, all of the commissioners are Christian, which could skew their decisions if a person chose not to participate in the prayer.

No timetable has been set for the court's decision.

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