Circuit Split on Legislator-Led Prayer Could Entice Supreme Court

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By Patrick L. Gregory

The U.S. Supreme Court may need to decide the constitutionality of legislator-led prayer after the full U.S. Court of Appeals for the Sixth Circuit upheld such a practice, legal scholars told Bloomberg BNA ( Bormuth v. County of Jackson , 2017 BL 312662, 6th Cir. en banc, No. 15-1869, 9/6/17 ).

A Michigan county’s practice of starting meetings with commissioner-led prayers is constitutional, the appeals court held Sept. 6 in a 9-6 decision by Judge Richard Allen Griffin.

The ruling “definitely” creates a split with the Fourth Circuit, which came to the opposite conclusion in Lund v. Rowan County, Frank S. Ravitch, a professor who teaches about law and religion at Michigan State University law school, East Lansing, Mich., told Bloomberg BNA by email.

The split could lead the Supreme Court to take up the issue of legislative prayer for a third time, though the court may let the issue “germinate a bit more to see what other circuits do,” Ravitch said.

When the court last took up the issue, it ruled that a town’s practice of inviting predominantly Christian clergy to open board meetings with prayer was constitutional, in Town of Greece v. Galloway.

“I think it’s going to be very hard” for the high court not to step in, Daniel Blomberg, an attorney with Becket Fund for Religious Liberty, Washington, told Bloomberg BNA. The Becket Fund filed an amicus brief supporting the county.

The Sixth Circuit “fairly directly” said it disagreed with the Fourth Circuit, and there’s now “a really sharp split that’s directly on a very important question,” Blomberg said.

Establishment Clause

The county’s prayer practice doesn’t violate the Constitution’s establishment clause, which prohibits the government from making laws “respecting the establishment of religion,” and is consistent with the high court’s legislative prayer decisions in Marsh v. Chambers and Town of Greece v. Galloway, the Sixth Circuit 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 joined the decision.

Judge Karen Nelson Moore dissented and said the majority extended Town of Greece‘s holding too far. Town of Greece upheld “respectful, chaplain-led prayer,” Moore said.

Here, the commissioners “refused to allow any non-Commissioners” to give prayers, and expressed “disgust at people who voice a different opinion,” Moore said.

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

Amici Reactions

The ruling impermissibly favors Christianity over other faiths, Richard B. Katskee, legal director of Americans United for Separation of Church and State, said in a statement emailed to Bloomberg BNA.

That’s “not what this country is about,” said Katskee, who argued as amicus challenging the prayer practice.

“When you go to a meeting of your local city or county government, you should be an equal citizen with an equal voice,” he said.

That means people of all faiths and non-believers “should be treated equally,” he said.

“We don’t want or need any more reason for divisiveness and civil strife along religious lines—and the Constitution doesn’t allow it,” he said.

The decision was a “fairly straightforward application of decades of precedent” holding that local bodies can begin meetings with legislative prayer, Blomberg said.

“The issue here is whether or not the Establishment Clause requires a particular type of prayer,” he said.

Judges shouldn’t be “in the position of editing prayers,” he said.

SCOTUS Precedent

The ruling here was more consistent with Supreme Court precedent than the Fourth Circuit’s ruling in Lund, which struck down a North Carolina county board’s prayer, Michael P. Moreland, a professor who teaches constitutional law at Villanova University law school, Villanova, Pa., told Bloomberg BNA by email.

The high court’s decisions in Marsh and Town of Greece “noted the long historical practice of legislative prayer and held that such prayers do not violate the Establishment Clause, even when the prayers are religiously sectarian,” Moreland said.

The disagreement between the circuits “is focused on some distinctions from Town of Greece—for example, that the prayers were delivered by the county commissioners and not an outside chaplain,” Moreland said.

Lund overstates the constitutional significance of those distinctions, Moreland said.

Video Evidence Excluded

The court should have considered video evidence presented by the plaintiff, which showed that commissioners wanted to exclude others simply “to avoid hearing prayers they would not like,” Moore said.

The court said such evidence wasn’t part of the record.

But the county admitted to the videos’ accuracy, and the court therefore should have admitted them to the record by taking judicial notice of them, Moore said.

The majority “may have been right to exclude” the evidence, Ravitch said.

But that exclusion is significant because there’s “no question in my mind that Jackson violated the Establishment Clause when you consider all the information,” he said.

Yet even without such evidence, there’s “still a likely violation” of Town of Greece‘s standard, Ravitch said.

It’s “apparent that the prayers and related conduct by council members” here violate the high court’s “admonition against singling out people for opprobrium based on the prayer,” he said.

Tradition of Prayer

The Jackson County Board of Commissioners begins its meetings “with a prayer that is generally solemn, respectful, and reflective,” the court said.

That practice is consistent with historical tradition and therefore doesn’t violate the establishment clause, the court said.

Since “the founding of our Republic, Congress, state legislatures, and many municipal bodies have commenced legislative sessions with a prayer,” the court said.

As indicated in Marsh and Town of Greece, the “history of legislators leading prayers is uninterrupted and continues in modern time,” the court said.

Legislators have led prayers in state capitals “since at least 1849,” the court said.

Sectarian Prayers OK

Peter Bormuth, a “self-professed Pagan and Animist” who attended county meetings, argued that the county’s practice is unconstitutional because each commissioner is a Christian, the court said.

The court rejected “this narrow reading of the Supreme Court’s legislative-prayer jurisprudence and our history.”

The prayers fell within “the religious idiom accepted by our founders,” whose prayers made sectarian references to “Jesus” and the “Holy Spirit,” the court said.

Marsh and Town of Greece don’t require the county to promote a diversity of religious faiths in its prayers, the court said.

Ruling otherwise would require the county to judge how many faiths it should sponsor, the court said.

Town of Greece said such judgments aren’t appropriate, the court said.

It’s sufficient that the county’s prayer policy is “facially neutral” and allows prayers of any faith, the court said.

People of non-Christian faiths “or no faith” can still be elected as commissioners, and can make prayers of their choosing under the policy, the court said.

Not Coercive

The court rejected Bormuth’s argument that the prayer practice coerced attendees of public meetings to participate and was therefore unconstitutional.

Bormuth alleged that commissioners coerced attendees by asking them “to rise and assume a reverent position” for the prayers, the court said.

But such “polite” requests don’t “alone mandate participation” in the prayers, even if made by elected officials rather than chaplains, the court said.

Bormuth also alleged that commissioners acted coercively by turning their backs on him when he was making public comments, the court said.

But nothing in the record suggested that the commissioners were being antagonistic toward his religious beliefs, the court said.

Rather, the record showed that the commissioners “reacted to his antagonism toward them,” the court said.

The commissioners “did react poorly,” the court said. However, “they reacted not to his beliefs but to the litigious way he chose to express them,” the court said.

Jackson County elected officials “know what getting sued by Bormuth feels like, having been in the position many times before,” the court said.

Bormuth, of Jackson, Mich., argued for himself. Allyson N. Ho of Morgan, Lewis & Bockius LLP, Dallas, argued for the county.

Michigan Solicitor General Aaron D. Lindstrom of the attorney general’s office, Lansing, Mich., argued on behalf of 21 states as amicus curiae supporting the county.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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