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En Banc 6th Cir. to Hear Government-Led Prayer Case

By William Vogeler, Esq. on March 01, 2017 | Last updated on March 21, 2019

The U.S. Sixth Circuit Court of Appeal didn't take long to take another look at its recent decision against prayer at a county commission meeting.

The entire court, acting sua sponte, ordered another hearing on the issue less than two weeks after a panel ruled in the controversial case. In a split decision, the panel had said that Jackson County commissioners violated the First Amendment in conducting prayers before each meeting.

"Legislative prayer may fall outside the bounds of the Establishment Clause if it strays too far from its traditional purpose and effect--respectful solemnification -- or if it is unconstitutionally coercive," Judge Karen Nelson Moore wrote for the majority.

Endorsing a Religion

The case arose after Peter Carl Bormuth objected to the commissioners' opening meetings with prayer. He said he was offended because -- as a self-described pagan and animist -- he felt like he was being forced to participate in a religion to which he did not subscribe in order to bring a matter of concern to his local government.

Bormuth sued, alleging a violation of his First Amendment rights. A trial judge granted summary judgment against him, but the court of appeals reversed. The majority said that the commissioners went too far by saying the prayers themselves and endorsing their religion -- Christianity.

"Because they are the ones delivering the prayers, the Commissioners -- and only the Commissioners--are responsible for the prayers' content," Moore said. "And because that content is exclusively Christian, by delivering the prayers, the Commissioners are effectively endorsing a specific religion."

In dissent, Judge Richard Griffin said the majority misapplied precedent and more than two hundred years of legislative prayer.

Legislative Prayer

"Since the founding of our Republic, Congress, state legislatures, and many municipal bodies have commenced each legislative session with a prayer," he said. "Contrary to today's decision, the Supreme Court has ruled twice that legislative prayer does not violate the Establishment Clause of the United States Constitution."

In sharp criticism, Griffin called down his colleagues from the ivory tower to point out that they had no idea what religion the commissioners professed. Griffin explained that Christianity is comprised of many different faiths, and said that Jackson County voters could elect a person of any faith to its commission.

"In fact, east of Jackson County is the City of Hamtramck, Michigan, which just elected a Muslim majority city council," he said. "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 session with a prayer of his choosing--to 'Mother Earth,' the sun, the moon (or otherwise)."

After the ruling, Professor Ruthann Robson predicted the Sixth Circuit would revisit the issue en banc. Writing for the Constitutional Law Prof Blog, Robson said the same problem troubled the U.S. Fourth Circuit Court of Appeal.

"The issue of legislative prayer in the context of local government continues to vex the courts," she said.

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