Jackson County, Michigan Case

Case Background

The tradition of legislative invocations has been in place in America since the nation’s earliest days, and the Supreme Court has also upheld the practice in two important cases: Marsh v. Chambers (1983), which upheld invocations by a chaplain who was an officer of the legislature and paid with public funds, and most recently in Town of Greece v. Galloway (2014), which upheld the ability of the town of Greece, New York, to open its town board meetings with an invocation offered by clergy.

The Jackson County Board of Commissioners, which opens its meetings each month with an invocation offered by one the commissioners, falls squarely within the American historical tradition of legislative invocations. The commissioners who offer invocations choose voluntarily to do so. They offer the invocations on a rotating basis and are free to act according to their own consciences, whether that means delivering an invocation or offering a moment of silence. To further solemnize the occasion, those in attendance are also invited to stand for the Pledge of Allegiance.

Peter Bormuth, a local activist who had attended some of the commission’s meetings, sued Jackson County in 2013. His lawsuit argued that the legislative invocations violated the U.S. Constitution’s Establishment Clause.

The federal district court judge who heard the case ruled in favor of Jackson County. The district court judge stated that “Bormuth’s subjective sense of affront” was “insufficient to sustain an Establishment Clause violation.”

However, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit later overturned the district court’s ruling 2-1 in favor of Mr. Bormuth. Importantly, the lone dissenting judge—who would have ruled in favor of Jackson County—believed that the majority’s opinion contradicted both the First Amendment and Supreme Court precedent.

After this decision, the Sixth Circuit decided, in a rare move, to rehear the case en banc, which means the case would be reviewed by a full panel of 15 judges of the Sixth Circuit.

Commissioners’ Rights Upheld

First Liberty Institute stepped in to represent Jackson County after the Sixth Circuit ruling against the commissioners’ legislative invocations. First Liberty represented Jackson County in the en banc rehearing in 2017.

In September of that year, the full U.S. Court of Appeals for the Sixth Circuit affirmed the decision of a federal district court judge and ruled that the Jackson County Board of Commissioners may open its meetings with invocations. That decision was then appealed to the U.S. Supreme Court, which declined to review the Sixth Circuit opinion.

“Our country has a long history of legislator-led prayer, just as the Sixth Circuit determined in our favor. Thankfully our clients in Jackson County, Michigan will be able to continue their tradition,” said Kelly Shackelford, President, CEO, and Chief Counsel to First Liberty Institute.