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.
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.
For Immediate Release: June 28, 2018
Contact: Lacey McNiel, email@example.com
U.S. Supreme Court Upholds Sixth District Court Decision Allowing Legislative Prayer
Decision to not review opposite Fourth Circuit decision leaves counties wondering if invocations are allowed now based on geography, rather than the Constitution
WASHINGTON, DC—The U.S. Supreme Court today announced that it denied to review the decision of the United States Court of Appeal for Sixth Circuit in Bormuth v. County of Jackson, which found legislator invocations to be constitutional. First Liberty Institute and Supreme Court advocate Allyson Ho with Gibson, Dunn & Crutcher represent Jackson County, Michigan, whose commissioners open public meetings with prayer.
“Our country has a long history of legislator-led prayer, just as the Sixth Circuit determined in our favor,” said Kelly Shackelford, President and CEO to First Liberty Institute. “Thankfully our clients in Jackson County, Michigan will be able to continue their tradition. We hope the Supreme Court will one day extend that protection across the country.”
At the same time the Court declined to review an opposite opinion from the U.S. Court of Appeals for the Fourth District in Rowan County v. Lund, which concluded that similar invocations are unconstitutional.
While the Supreme Court denied review of both cases, leaving in place the decisions before the Sixth and Fourth Circuits, Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented from the decision, saying, “For as long as this country has had legislative prayer, legislators have led it . . . The Fourth Circuit’s decision is both unfaithful to our precedents and ahistorical. It also conflicts with a recent en banc decision of the Sixth Circuit . . . This Court should have stepped in to resolve this convict.”
Like numerous federal and state legislatures since the founding of our country, these county commissioners precede official business with a short prayer. The commissioners—as many of their counterparts have done for centuries—deliver legislative prayers themselves. Today’s decision leaves in place a circuit split, meaning as Justice Thomas explained, “State and local lawmakers can lead prayers in Tennessee, Kentucky, Ohio, and Michigan, but not in South Carolina, North Carolina, Virginia, Maryland, or West Virginia.”
Shackelford added, “We agree with Justice Thomas who wrote in his dissenting opinion that, ‘The only real difference between this case and Town of Greece is the person leading the prayer.’”
To read more, go to FirstLiberty.org/JacksonCounty.
# # #
About First Liberty Institute
First Liberty Institute is a non-profit public interest law firm and the largest legal organization in the nation dedicated exclusively to defending religious freedom for all Americans. To arrange an interview, contact Lacey McNiel at firstname.lastname@example.org or by calling 972-941-4453.
To download this press release, please click here.
09/06/2017 – Bormuth v. Cnty of Jackson – Sixth Circuit En Banc Decision
05/10/2017 – Bormuth v. Cnty of Jackson-110-Appellant Supplemental Reply
05/01/2017 – Bormuth v. Cnty of Jackson-77-Bipartisan Legislators Amicus Brief
04/27/2017 – Bormuth v. Cnty of Jackson-75-States-MI-Appx
04/27/2017 – Bormuth v. Cnty of Jackson-71-Bipartisan legislators-Balch
04/27/2017 – Bormuth v. Cnty of Jackson-66-Appellee Supplemental Brief
02/27/2017 – Bormuth v. Cnty of Jackson-30-1-Order granting en banc
02/15/2017 – Bormuth v. Cnty of Jackson-29-1-CA6 Opinion
10/13/2015 – Bormuth v. Cnty of Jackson-16-CA6 Panel Appellee Brief