CINCINNATI (CN) — In a 2-1 ruling with a vigorous dissent, the Sixth Circuit on Wednesday found that prayers uttered by county commissioners to open monthly board meetings “are literally ‘government speech’” and violate the Establishment Clause of the Constitution.
Although the tradition of “legislative prayer” has been upheld by the Supreme Court on two occasions, Jackson County, Michigan’s practice of commissioner-led prayer “falls far afield of the historical tradition … [and] heightens the risk of coercion,” Sixth Circuit Judge Karen Nelson Moore wrote for the panel.
Sixth Circuit Judge Richard Griffin’s 31-page dissent was nearly as long as the 33-page ruling, in which Sixth Circuit Judge Jane Branstetter Stranch joined.
Moore was appointed to the federal bench by President Bill Clinton, Stranch by President Barack Obama, Griffin by President George W. Bush.
All nine commissioners of Jackson County are Christian. Eight are white. The county of 161,000 in southern Michigan, south of Lansing and west of Ann Arbor, is 89 percent white and 9 percent black, according to census figures. Its seat is Jackson.
The commission traditionally opens its board meetings with a prayer led by a commissioner.
Attendees are asked to rise and bow their heads during the prayer.
Peter Bormuth, who argued the case on his own behalf, filed suit in August 2013 after a board meeting during which a commissioner “made faces expressing his disgust” when Bormuth spoke out against the prayers.
Bormuth – who declined to stand during the prayer – claimed the board retaliated against him when it refused to nominate him to a Waste Planning Committee, despite three years of relevant experience.
U.S. District Judge Marianne O. Battani of the Eastern District Court of Michigan disregarded a magistrate judge’s recommendation to rule in favor of Bormuth, and granted the county’s motion for summary judgment.
Battani called Bormuth’s reaction to the prayers “hypersensitive.”
But on Wednesday the Sixth Circuit reversed and remanded, citing U.S. Supreme Court rulings in Marsh v. Chambers and Town of Greece, two cases in which legislative prayers were upheld as constitutional.
In those cases, however, the prayers were delivered by a chaplain and “invited clergy and laypersons,” respectively, which Moore cited as the crucial distinction.
“Here, the Jackson County Commissioners give the prayers,” she wrote. “The difference is not superficial. 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, in Bormuth’s words, are literally ‘government 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.”
Commissioners’ use of exclusively Christian prayers, coupled with reluctance to allow residents to lead prayers, “is preventing participation by religious minorities and endorsing a specific religion. This brings the County’s use of prayer to open its monthly meetings well outside the ambit of historically tolerated legislative prayer,” Moore wrote.
She also found that asking the public to stand and bow their heads was unconstitutionally coercive.
Moore distinguished the commissioners’ action from those of the clergy in Town of Greece, whose requests were “inclusive, not coercive,” and found that “the words ‘rise’ and ‘assume a reverent position’ from the Chairman … are not mere suggestions, they are commands.”
In dissent, Griffin also cited Marsh and Town of Greece, and the Fourth Circuit’s 2016 ruling in Lund v. Rowan City.
In Lund, the Fourth Circuit upheld a “remarkably similar” commissioner-led prayer, and “concluded ‘the very ‘history and tradition’ anchoring the Supreme Court’s holding in Town of Greece underscores a long-standing practice not only of legislative prayer generally but of lawmaker-led prayer specifically,’” Griffin wrote.
He continued: “The Fourth Circuit … emphasiz[ed] that individual commissioners could ‘give their own prayer without oversight, input, or direction’ from the board. … Moreover, there was no evidence indicating the prayers given were ‘anything but a personal creation of each commissioner acting in accord with his or her own personal views.’ So too in Jackson County.” (Citations omitted.)
Griffin took exception to the majority’s statement that all of the commissioners are “Christian,” adding: “The Reformation of the Fifteenth Century [sic] spawned an explosion of … diverse Christian faiths.”
“My colleagues do not know the religious faiths of the 2013-2014 Jackson County Commissioners,” Griffin wrote. “Nor does the majority know the religious faiths of the current commissioners. In this regard, the religious allegiance of the members of the Commission is subject to change with each election cycle. … With each election, the people of Jackson County may elect a Commissioner who is Muslim, Buddhist, Hindu, Jewish, Mormon, Roman Catholic, Eastern Orthodox Christian, Baptist, Methodist, Presbyterian, Lutheran, Episcopalian, Congregationalist, Quaker, Amish, Mennonite, Pentecostal, ‘Animist,’ Pagan, Atheist, Agnostic, and so on. … Were Mr. Bormuth elected to the Jackson County Board of Commissioners, under the religious-neutral Jackson County legislative prayer practice, he could freely begin a legislative section with a prayer of his choosing – to ‘Mother Earth,’ the sun, the moon (or otherwise).”
Nor did Griffin agree that the prayer policy is “coercive;” he took particular exception to the majority’s characterization of the requests for audience members to stand and pray.
“I refuse to equate these ‘commonplace’ and ‘reflexive’ requests as mandating prayer participation,” Griffin wrote.
Nor did he agree with the majority’s finding that commissioners retaliated against Bormuth when they refused to give him a seat on the Waste Planning Committee.
“Other than Bormuth’s attestation that he was ‘the most qualified applicant,’ there is nothing in the record linking the refusal to appoint Bormuth to the Board of Public Works to his objection to the prayer policy,” Griffin wrote. “Bormuth even admits he was told that the candidate selected had prior governmental experience in setting up a recycling station. Without more facts about the selection process, this court should not, as a matter of law, draw the conclusion made by the majority.”