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.

However, in 2013, Peter Bormuth, a local activist who had attended some of the commission’s meetings, sued Jackson County. Bormuth’s 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.”

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 the panel decision, the Sixth Circuit decided, in a rare move, to rehear the case en banc, which means all 15 judges of the Sixth Circuit review the case.

First Liberty Institute Legal Action

First Liberty Institute stepped in to represent Jackson County after the Sixth Circuit panel ruled 2-1 against the commissioners’ legislative invocations. First Liberty is representing Jackson County in the en banc rehearing on June 14, 2017.

Despite the Supreme Court’s recent ruling in Town of Greece, legislative invocations may soon be headed to the Supreme Court again depending on the outcomes of both the Jackson County case and similar case in North Carolina, Lund v. Rowan County, which was reheard en banc in March 2017 by the U.S. Court of Appeals for the Fourth Circuit. First Liberty also represents the commissioners of Rowan County. If the Fourth Circuit and the Sixth Circuit issue contradictory rulings, the Supreme Court could take up this issue again.

America’s Historical Tradition of Legislative Invocations—Including those Led by Elected Officials

Legislative invocations date back to the American founding. In fact, the First Congress—which crafted and approved the language of the First Amendment—passed laws creating the salaried positions of Senate Chaplain and House Chaplain. One of the duties of these chaplains was to give invocations every day Congress was in session.

As First Liberty’s legal brief notes, legislative invocations offered by elected officials are nearly ubiquitous at all levels of government, from members of Congress, to state officials, and even local legislators.

First Liberty’s brief also notes that in addition to legislative invocations, proclamations of days of fasting and prayer have been issued by elected officials throughout America’s history, including by the Continental Congress and Presidents John Adams, James Madison, and Abraham Lincoln. Some of these proclamations included faith-specific language.

Finally, First Liberty’s brief pointed out that whether a legislative invocation occurs in a local setting rather than at another level of government does not make it subject to enhanced or additional scrutiny. Jackson County’s invocations are constitutional due to many factors, including that they are voluntary and they fall within constitutional boundaries set by the Supreme Court in its prior decisions.

For Immediate Release: June 14, 2017

Contact: Abigail Doty, adoty@firstliberty.org
Cell: 469-237-9102, Direct: 469-440-7598


First Liberty to defend constitutionality before the U.S. Court of Appeals for the Sixth Circuit

CINCINNATI—Today, attorneys from First Liberty Institute defend the longstanding practice of opening government meetings with invocations before the full U.S. Court of Appeals for the Sixth Circuit. First Liberty’s legal team will argue on behalf of Jackson County, Michigan, in the case of Bormuth v. County of Jackson.

“Legislatures at the federal, state, and local levels nationwide have opened their sessions with invocations for more than two centuries, as the Supreme Court has twice recognized in upholding this widely accepted practice,” said Ken Klukowski, Senior Counsel at First Liberty. “Jackson County’s invocations are fully consistent with the Constitution and the Supreme Court’s guidance on this issue.”

A local activist sued the commissioners of Jackson County, arguing that their tradition of beginning monthly meetings with an invocation violates the First Amendment. A federal district court judge upheld Jackson County’s practice of allowing each of its nine commissioners to have rotating opportunities to deliver a voluntary invocation. A three-judge panel of the Sixth Circuit reversed the lower court’s ruling in a 2-1 decision. But the Cincinnati-based appeals court decided to hold a rare en banc rehearing of the case, meaning all 15 judges of the court will now hear the case.

In a similar case, First Liberty also represents the commissioners of Rowan County, North Carolina (Lund v. Rowan County), which was heard en banc in March 2017 before the U.S. Court of Appeals for the Fourth Circuit. If the Sixth Circuit and Fourth Circuit issue contradictory rulings, the U.S. Supreme Court could well take up this issue again.

Read more about this case at FirstLiberty.org/Jackson.

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About First Liberty Institute

First Liberty Institute is the largest legal organization in the nation dedicated exclusively to defending religious freedom for all Americans.

To arrange an interview, contact Abigail Doty at adoty@firstliberty.org or by calling 469-440-7598 (office) or 469-237-9102 (cell).

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