Legislator-Led Prayers Unconstitutional

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By Patrick L. Gregory

A Michigan county’s commissioners violated the First Amendment by opening sessions with their own prayers, the U.S. Court of Appeals for the Sixth Circuit held Feb. 15 ( Bormuth v. County of Jackson , 2017 BL 45374, 6th Cir., No. 15-1869, 2/15/17 ).

The court distinguished legislator-led prayers from those led by persons outside of the government, in a decision by Judge Karen Nelson Moore, joined by Judge Jane Branstetter Stranch.

The ruling will likely draw attention to a similar legislator-led prayer controversy in the Fourth Circuit, which upheld such prayers in Lund v. Rowan County, 887 F.3d 407 (4th Cir. 2016), but has scheduled en banc rehearing for March 22.

If the circuit split remains after rehearing, it could cause the U.S. Supreme Court to weigh in on the issue.

Dissent, SCOTUS

A dissent by Judge Richard Allen Griffin said the high court has twice ruled that beginning legislative sessions with prayers doesn’t violate the First Amendment’s establishment clause.

He cited Marsh v. Chambers, 463 U.S. 783 (1983), and the high court’s more recent decision in 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).

But the “prayer giver” was a chaplain in Marsh, while Town of Greece involved prayer by “invited clergy and laypersons,” the panel majority said here.

When legislators give the prayers, the government and prayer giver “are one and the same,” and such prayers therefore violate the establishment clause, the court said.

Peter Carl Bormuth, the plaintiff, argued for himself. Cohl, Stoker & Toskey P.C. argued for the defendant County of Jackson, Mich.

Americans United for Separation of Church and State argued for itself as amicus curiae supporting Bormuth.

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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