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February 1 2018

Sixth Circuit Court of Appeals Rules That It Is Okay for Public Officials to Offer Invocations Before Local Government Meetings

By: Bradley A. Fowler

In a recent opinion, the United States Court of Appeals for the Sixth Circuit sitting En Banc, ruled that the practice of the Jackson County, Michigan Board of Commissioners of offering a prayer before commission meetings does not violate the Establishment Clause of the United States Constitution. The case, Bormuth v County of Jackson, arose when a “self-professed Pagan and Animist,” took offense to the Jackson County Board of Commissioners custom of opening its monthly meetings with Commissioner-led prayers. Typically, following the call to order, the Board’s Chairman requested Commissioners and the public to stand. On a rotating basis, one of the Commissioners then offered a prayer based on the dictates of his/her own conscience, which was followed by the Pledge of Allegiance, and then county business.

The plaintiff complained that the prayers were “severely offensive to him as a believer in the Pagan religion.” He further argued that “the predominately Christian prayers offered by the Commissioners made him feel like he was being forced to worship Jesus Christ in order to participate in the business of the County Government.” After protesting during the public comment sections of the meetings, the plaintiff eventually filed a lawsuit against the County. The district court granted the County’s motion to dismiss the case and the plaintiff appealed to the Sixth Circuit. The crux of the analysis on appeal was whether Jackson County’s prayer practice falls outside of our nation’s historically accepted traditions because the Commissioners themselves, as opposed to a chaplain or invited community member, lead the invocations.

The Court began its analysis by reaffirming that “the opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.” Quoting the United States Supreme Court, the Sixth Circuit stated “the Framers considered legislative prayer a benign acknowledgment of religion’s role in society,” and expressed that is no surprise, therefore, that the Supreme Court has twice approved the practice of legislative prayer as consistent with the Framers’ understanding of the Establishment Clause. This tradition of legislative prayer makes sense, the Court said, in light of the legislative prayer’s purpose which “invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing.”

After analyzing the Supreme Court’s legislative prayer line of cases, the Sixth Circuit concluded that Jackson County’s invocation practice was not in violation of the Establishment Clause despite the fact that the prayers were offered by elected officials rather than a chaplain or visitor. The Court held that the Supreme Court’s jurisprudence did not restrict who could offer prayers, and the fact that “the prayers reflect the individual Commissioners’ religious beliefs does not mean the Jackson County Board of Commissioners is ‘endorsing’ a particular religion, Christianity or otherwise.” Finally, the Court rejected the plaintiff’s assertion that Jackson County’s invocation practice is coercive. The Court specifically pointed out that the plaintiff admitted he did not participate in the prayers nor was he dissuaded from showing up late, sitting the prayers out, or protesting after the fact.

The Sixth Circuit’s ruling in Bormuth v County of Jackson reaffirms the constitutionality of prayers before public meetings, even if led by elected officials, as long as they are facially neutral regarding religion and do not become coercive. Local governments across Michigan should reassess their invocation practices in light of the Bormuth decision to ensure they pass constitutional muster. If you would like to discuss specific issues relating to your invocation practice, please contact your Mika Meyers attorney.