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The constitutionality of legislative prayer remains murky despite a recent decision striking down a Michigan county’s practice of praying before board sessions, scholars told Bloomberg BNA.
Jackson County’s legislator-led prayers before county board sessions violated the First Amendment’s establishment clause, the U.S. Court of Appeals for the Sixth Circuit held in Bormuth v. Cty. of Jackson, 2017 BL 45374 (6th Cir. Feb. 15, 2017).
That decision “certainly will come as a warning to state or local elected bodies,” Paul Horwitz, who teaches constitutional law at the University of Alabama law school, Tuscaloosa, told Bloomberg BNA by e-mail Feb. 16. But the validity of such practices “is still a somewhat fact-specific question,” he said.
Further guidance from the U.S. Supreme Court is unlikely to come soon even if the circuits remain split, scholars said.
A Fourth Circuit panel upheld legislator-led prayers before the court scheduled en banc rehearing for March 22 in that case, Lund v. Rowan County, 2016 BL 364281 (4th Cir. Oct. 31, 2016).
The Fourth Circuit could reverse course when it hears the case again, which would erase the split.
After the Fourth Circuit’s decision, Bormuth was “the second federal appellate case on legislative prayer since” the U.S. Supreme Court decided Town of Greece v. Galloway, 82 U.S.L.W. 4334, 2014 BL 124245 (U.S. May 5, 2014) (82 U.S.L.W. 1652, 5/6/14), Christopher Lund, a professor who teaches about religious liberty at Wayne State University law school, Detroit, told Bloomberg BNA by e-mail Feb. 16.
Town of Greece “upheld a legislative prayer practice where most of the prayers were Christian,” Caroline Mala Corbin, a professor who teaches constitutional law at the University of Miami law school, Coral Gables, Fla., told Bloomberg BNA by e-mail Feb. 16.
As the Sixth Circuit noted, “the challenge for a lower court when dealing with a case like this is figuring out exactly what the Supreme Court’s rule or standard really is,” Richard Garnett, a professor who teaches about freedom of religion at the University of Notre Dame law school, Notre Dame, Ind., told Bloomberg BNA by e-mail Feb. 16.
“We know that legislative prayer has deep historical roots and that it can be constitutional,” Garnett said.
But the high court has also said “that some prayers or practices might not be (if they are coercive or abusive, for example),” Garnett said.
“The Court’s rulings make it the case that there will often be room for reasonable disagreement over how to interpret the relevant facts,” he said.
Corbin said she believes Town of Greece “was wrongly decided.” But she said the “key” to that decision “was that the government had not intentionally discriminated against non-Christians,” unlike the commissioners in Bormuth.
In Bormuth, the Sixth Circuit found that Jackson County’s commissioners “punished people” who didn’t participate in the Christian prayers, Corbin said.
After Town of Greece, “most legislative prayer is constitutional, but there are exceptions, and Jackson violated almost every one of them,” Frank S. Ravitch, a professor who teaches about law and religion at Michigan State University law school, East Lansing, Mich., told Bloomberg BNA by e-mail Feb. 16.
Jackson’s commissioners “themselves delivered the prayer” rather than inviting others to do so, Ravitch said.
“When government officials themselves pray, there’s more pressure on attendees to go along with the prayer” and a “stronger sense that these are the government’s prayers,” Lund said.
Further, the commissioners here “didn’t even pretend to provide an opportunity for alternative prayers and shot down” a suggestion that they do so, Ravitch said. They even literally “turned their backs” on the plaintiff, Peter Bormuth, when he made such a suggestion, he said.
Town of Greece “made clear that such negative treatment aimed at someone who complains about prayer remains unconstitutional,” Ravitch said.
Jackson’s commissioners were their “own worst enemy,” Horwitz said. The board “certainly could have avoided not only insulting Mr. Bormuth, but arguing against him in explicitly religious terms,” Horwitz said.
But the Sixth Circuit majority offered a “very aggressive, even dubious” reading of Town of Greece and of the facts here, Horwitz said.
Town of Greece “was much more welcoming of legislative prayer, much less interventionist, and much less willing to find a violation of the Establishment Clause absent a serious pattern or practice of disturbing behavior” than Bormuth suggests, he said.
“And, for better or worse, it was much more willing to accept prayer practices that result in overwhelmingly or solely Christian prayer, provided that the process is neutral and fair and merely reflects the demographics of the political jurisdiction, than the Sixth Circuit’s opinion suggests.”
The Supreme Court probably won’t clarify the issue in the near future, if at all, scholars said.
“I would be very surprised if the Supreme Court agreed to review” Bormuth, Garnett said. Corbin said she agreed because the establishment clause violation “was so flagrant” here.
“However, if there were a circuit split, the Court might take it,” Corbin said.
But Lund said that even if the Fourth Circuit upholds the prayers in Rowan County, “there are some factual differences” between that case and Bormuth “that won’t make it an entirely clean circuit split.”
Further, there “were many legislative prayer cases between the Supreme Court’s first decision” on legislative prayer in Marsh v. Chambers, 463 U.S. 783 (1983), and Town of Greece, Lund said.
“The Court will probably wait until there are clear lines of division in the Courts of Appeals—if that ever happens—before taking a third case on this,” Lund said.
Justice Anthony M. Kennedy “would surely be the dispositive vote,” but he will “naturally be hesitant to take another case like this, because he probably doesn’t have a better way of drawing lines than he did two years ago” in his controlling opinion in Town of Greece, Lund said.
The fact-specific nature of legislative prayer cases are another reason the high court might not weigh in, Horwitz said.
“But at some point, the Supreme Court may well feel called upon to decide whether legislator-led prayer policies are constitutional or not,” Horwitz said.
Justice Samuel A. Alito Jr. suggested that courts should be deferential to local governments’ prayer policies, concurring in Town of Greece, Horwitz said.
Alito “suggested that while Congress has the resources and thoughtfulness to put together a fair and reasonable prayer policy, local governments will sometimes fall short,” Horwitz said.
But it’s possible that “precisely because so many local bodies commit so many errors, or are rude and combative in the way some members of” Jackson’s board were, “it calls into doubt whether it’s possible to have a sound and constitutional legislative prayer practice at the local level.”
“At the least, bodies like this Board should think hard about doing it right—about doing it respectfully and carefully rather than thoughtlessly and rudely.”
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