Split En Banc Sixth Circuit OKs Government-Led Prayer

CINCINNATI (CN) – A divided full Sixth Circuit on Wednesday upheld a Michigan county’s practice of opening its board meetings with a commissioner-led prayer as constitutional, finding the prayers fall inside the scope of historically accepted traditions and are not coercive.

The 9-6 ruling comes nearly three months after Peter Bormuth argued pro se in front of the entire Cincinnati-based appeals court, fighting to overturn a decision from U.S. District Judge Marianne O. Battani in the Eastern District of Michigan.

Bormuth, a self-professed pagan and animist, claimed a Jackson County, Mich., commissioner turned his back when Bormuth objected to the prayer practice at a commissioners meeting, and that he was denied an appointment to the Jackson County Solid Waste Planning Committee because of his objections to the prayers.

Judge Battani called Bormuth’s reaction “hypersensitive,” but a three-judge panel of the Sixth Circuit reversed her decision in February.

However, a sua sponte poll of the entire court compelled an en banc hearing in June.

U.S. Circuit Judge Richard Allen Griffin wrote in Wednesday’s majority opinion that “although the prayers offered before the board generally espouse the Christian faith, this does not make the practice incompatable [sic] with the Establishment Clause. Quite the opposite, the content of the prayers at issue here falls within the religious idiom accept by our Founders.”

Judge Griffin cited two U.S. Supreme Court cases extensively in his opinion – 1983’s Marsh v. Chambers and Town of Greece v. Galloway, decided in 2014.

Marsh dealt with the Nebraska Legislature’s practice of opening its sessions with a chaplain-led prayer, a tradition upheld by the Supreme Court as “part of the fabric of our society.”

The more recent decision in Town of Greece held that legislative prayers – regardless of the faith espoused by the people who deliver them – “are permissible because ‘[o]ur tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.’”

Judge Griffin wrote that the decisions in Marsh and Greece uphold the “long-standing tradition” of legislative prayer regardless of who delivers the invocations.

“Put simply, we 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,” he wrote. (Parentheses in original.)

Griffin also defended the content of the prayers, which he said fell within constraints established by Town of Greece.

He wrote that “there is no evidence that the ‘invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion,’ or that there is a ‘pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose.’”

Griffin and the majority also rejected Bormuth’s claim that the commissioners’ request for attendees to “rise and assume a reverent position” at meetings is coercive.

“These ‘commonplace’ and ‘reflexive’ requests – whether from ministers or elected individuals following their own faith’s normative cues – do not alone mandate participation, especially as most are preceded with a polite ‘please,’” the majority’s opinion states.

Bormuth’s claim that he was denied a position on the solid waste planning committee was also rejected by Judge Griffin, who wrote that “beyond a template rejection letter, we know nothing about why Jackson County rejected Bormuth’s application.”

U.S. Circuit Judge Karen Nelson Moore authored a scathing dissent and chastised the majority for its decision to extend “the constitutional protection meant for solemn and respectful prayer traditions to a practice that excludes non-Christians from the prayer opportunity and expresses disgust at people who voice a different opinion.”

Judge Moore also cited Marsh and Town of Greece, but said the practice established by Jackson County “falls far afield from the historical tradition upheld in” those cases.

“Unlike in Town of Greece,” she wrote, “where the court found no evidence of sectarian motive in the selection of speakers, at least one Jackson County Commissioner admitted that, in order to control the prayers’ content, he did not want to invite the public to give prayers.”

Moore also disputed the majority’s claim that the prayer practice is not coercive, and argued that the “small and intimate” nature of the meetings amplifies the instructions given by the commissioners when they initiate proceedings.

In her conclusion, Judge Moore warned that “the majority is dangerously close to permitting exactly what … Town of Greece obviously does not permit – government officials instructing citizens to participate in sectarian prayer before commencing government proceedings.”

“There is no daylight between polling place workers asking individuals to pray before casting their ballots … and county commissioners asking individuals to pray before participating in local government meetings, as actually happens in Jackson County,” she said.

Judges Alice M. Batchelder, Julia Smith Gibbons, John M. Rogers, Jeffrey S. Sutton, Deborah L. Cook, David W. McKeague, Raymond M. Kethledge and Amul R. Thapar sided with the majority.

Judge Moore was joined in her dissent by Chief Judge R. Guy Cole Jr. and Judges Eric L. Clay, Jane Branstetter Stranch, Bernice B. Donald and Helene N. White.

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