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February 21, 2017

Recent Sixth Circuit Ruling Impacts Prayer at Public Meetings

(Editor's Note: This advisory has been updated with new information. Please see addendum below.)

If you are a Jackson County resident, your next local Board of Commissioners' meetings might look a little different than what you are used to. On February 15, 2017, the Sixth Circuit Court of Appeals ruled that county commissioners in Jackson County, Michigan cannot open their meetings with prayer. The holding of that case will now apply to all public meetings held within the jurisdiction of the Sixth Circuit (Michigan, Kentucky, Ohio and Tennessee).

The case, Bormuth v. County of Jackson, was filed by Jackson County resident and self-described Pagan and Animist, Peter Bormuth. Bormuth alleged, among other things, that the use of prayer to begin the Jackson County Board of Commissioners' monthly meetings violated the First Amendment's Establishment Clause. The Establishment Clause prohibits not only the establishment of a religion by the government, but also prohibits the government from unduly favoring one religion over another.

The U.S. District Court disagreed with Bormuth, relying on the Supreme Court decision in Town of Greece v. Galloway - a divided 5-4 opinion - which ruled that prayers at local council meetings are permissible so long as they do not coerce or exclude those individuals outside the council members' practicing faith. The District Court specifically noted that the Commissioners' prayers contained only "benign religious references" and Bormuth was free to leave the room for the duration of the prayer if he felt offended.

On appeal, the Sixth Circuit distinguished the present case from Town of Greece. First, the prayer givers in Town of Greece were guest ministers and not governmental employees. The Sixth Circuit stated that because the prayers were exclusively Christian and conducted by the Commissioners, not ministers, the Commissioners were effectively endorsing a specific religion. Second, given the intimate nature of small local government meetings, there is increased pressure on Jackson County residents to participate in the prayer with the Commissioners they are there to petition. In essence, residents would feel obligated to participate in the prayer so as not to offend the Commissioners in a manner that would result in the resident's petition being ignored. The Court considered this tantamount to coercion.

So what does this mean for prayer at public meetings? It is a caution against public officials delivering prayers, particularly if they are exclusively of a particular religious ideology. It does not, however, prevent inviting clergy or other religious leaders to provide an invocation, provided that those allowed to present are not exclusively supporting a particular religion. Such actions would be perfectly in line with the Sixth Circuit's and Supreme Court's decisions.

If you have any questions, please feel free to contact:

UPDATE: On February 27, 2017, the U.S. Court of Appeals for the Sixth Circuit vacated the opinion in Bormuth v. County of Jackson and ordered that the case be reheard en banc, meaning that the case will go before the entire Sixth Circuit for review. Bormuth is currently docketed as a pending appeal and as of now, the previous Sixth Circuit decision no longer controls. Varnum will continue to monitor the case, and will update this article as soon as new information becomes available.   

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