Federal Appeals Court Issues A Disappointing Ruling On Legislative Prayer

The full 15-member 6th U.S. Circuit Court of Appeals today ruled that a Michigan county’s policy of having its county commissioners open their meetings by delivering exclusively Christian prayers was constitutional, reversing the earlier decision of a three-judge panel. That panel had previously decided in favor of Peter Bormuth, who argued that, as a member of a minority faith who attends the commission meetings, Jackson County’s prayer policy violated his First Amendment rights.

The Jackson County Board of Commissioners opens its meetings with prayers delivered exclusively by the commissioners themselves, all of whom are Christian and typically offer their prayers in the name of Jesus Christ. What’s more, the commissioners refuse to allow members of the public to give prayers – precisely to avoid hearing “things they are not going to like,” such as prayers by members of minority faiths.

After Bormuth filed this lawsuit, the commissioners singled him out for abuse, with one commissioner disparaging him as a “nitwit” and another calling the lawsuit an attack on “my lord and savior Jesus Christ.” Multiple commissioners twice literally turned their backs on Bormuth when he spoke at commission meetings. In doing so, the board has treated, and continues to treat, non-Christians in the county as second-class citizens based on their religious beliefs.

Government at all levels should treat people equally, regardless of what they believe -- or don't believe -- about religion.  

In an opinion on behalf of nine judges, the court today concluded that the county’s practice does not impermissibly endorse Christianity because it is possible that a non-Christian could one day be elected to the commission and then lead the board in the occasional non-Christian prayer. The majority also concluded that the attacks on Bormuth did not raise constitutional red flags because they did not antagonize Bormuth on the specific basis of his religious beliefs.

Writing on behalf of six judges in dissent, Judge Karen Nelson Moore responded that the possibility that a non-Christian might be elected should not render the county’s practice constitutionally permissible, because, “Voting for representatives based on what prayers they say is precisely what the First Amendment’s religion clauses seek to prevent.”

The dissenters also explained that the message that the commissioners’ treatment of Bormuth sent to citizens is “clear: residents who refuse to participate in the prayers are disfavored.” Accordingly, the dissenters concluded: “Not only is [Jackson County’s] prayer practice well outside the tradition of historically tolerated prayer, but also it coerces Jackson County residents to support and participate in the exercise of religion.”

Americans United’s legal director, Richard B. Katskee, presented arguments before the court, and AU also filed a friend-of-the-court brief in support of Bormuth.

Katskee lamented today’s ruling, remarking, “When you go to a meeting of your local city or county government, you should be an equal citizen with an equal voice. That means people of all faiths, and nonbelievers, should be treated equally. This ruling clearly shows favoritism to one faith above others, which is not what this country is about. We don’t want or need any more reason for divisiveness and civil strife along religious lines – and the Constitution doesn’t allow it.”

Today’s ruling stands in stark contrast to a decision by the full 4th U.S. Circuit Court of Appeals in a similar case, Lund v. Rowan County. In that case, the 4th Circuit ruled in July that a county’s practice of exclusively commissioner-led prayer violated the Constitution because it “served to identify the government with Christianity and risked conveying to citizens of minority faiths a message of exclusion.” Unfortunately, the Sixth Circuit didn’t see things the same way.

This difference of opinion between the two circuits means that the issue of legislative prayer may end up back before the Supreme Court. If and when it does, AU will be there to stand up for the rights of people of all faiths and none to be treated equally by the government.