6th Circuit: County Board's Prayer Practice Violates Establishment Clause

In Bormuth v. County of Jackson, (6th Cir., Feb. 15, 2017), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that the manner in which the Jackson County, Michigan Board of Commissioners opens its meetings with prayer violates the Establishment Clause.  The majority held that the County Commissioners went beyond that permitted by the Supreme Court's Town of Greece decision.  Plaintiff in the case was Peter Bormuth who described himself as a Pagan and an Animist. When during the public comment period at one meeting Bormuth complained that the invocation practice violated the Establishment Clause, one of the Commissioners "made faces expressing his disgust" and then turned his chair around so he would not look at Bormuth while he spoke.

Judge Moore's majority opinion said in part:

A combination of factors distinguishes this case from the practice upheld in Marsh and Town of Greece, including one important factor: the identity of the prayer giver.... Here, the Jackson County Commissioners give the prayers.... The difference is not superficial. When the Board of Commissioners opens its monthly meetings with prayers, there is no distinction between the government and the prayer giver: they are one and the same....

Because they are the ones delivering the prayers, the Commissioners—and only the Commissioners—are responsible for the prayers’ content.... And because that content is exclusively Christian, by delivering the prayers, the Commissionersare effectively endorsing a specific religion....

What is more, the prayer givers are exclusively Christian because of an intentional decision by the Board of Commissioners.... [A]t least one Jackson County Commissioner admitted that, in order to control the prayers’ content, he did not want to invite the public to give prayers....

First, the Board of Commissioners directs the public to participate in the prayers at every monthly meeting.... Second, the Board of Commissioners has singled out Bormuth for opprobrium. During a public meeting, a Commissioner stated that Bormuth’s lawsuit was an "attack on Christianity and Jesus Christ, period."...

Third, Bormuth has submitted evidence suggesting that the Board of Commissioners has “allocated benefits and burdens based on participation in the prayer.” ... Shortly after Bormuth filed his complaint, Jackson County officials nominated members for the County’s new Solid Waste Planning Committee from a pool of applicants.... Although Bormuth had three years of experience working on related issues, the Board of Commissioners did not nominate him.

Judge Griffin filed a lengthy dissenting opinion. AP reports on the decision.