December 12, 2016

6th Circuit Upholds Constitutionality of Legislative Prayer Policy

6th Circuit Upholds Constitutionality of Legislative Prayer Policy

Earlier this year, KLC filed an amicus brief in the case of Jones et al. v. Hamilton County Government, TN before the 6th Circuit Court of Appeals, supporting the constitutionality of invocations held at public meetings of local legislative bodies.  The issue was whether a formal written invocation policy adopted by the Hamilton County Commission violated the First Amendment's Establishment Clause.  On July 19, the 6th Circuit affirmed a lower court's ruling that a request for a preliminary injunction stopping the prayer practice should be denied.  In so ruling, the 6th Circuit analyzed whether the written policy was constitutional "on its face" (i.e., looking at the plain language of the policy without consideration of how it was applied in practice), and also "as-applied" (how the policy was actually implemented).

In its analysis of the facial challenge, the Court reviewed the policy under the standards of the U.S. Supreme Court's only case addressing the constitutionality of legislative prayer, Marsh v. Chambers.  Under Marsh, legislative prayer is permitted as long as there is no indication that the prayer opportunity has been exploited to advance one faith or belief over another.  Because the Hamilton County policy took steps to be inclusive of all bonafide religious organizations, was not discriminatory, and did not evaluate the content of the invocations given by private citizens, the Court held the policy was tailored to comply with Marsh and was facially constitutional.

The Court next turned to whether the policy was constitutional as applied.  Because the record contained only two prayers given after the policy was adopted, the Court held that this record was insufficient to make a determination of whether the implementation of the policy was constitutional.  However, the Court noted that now almost a year has passed since the policy's adoption, and that the district court is now in a position to address the constitutionality of the policy as applied.  This means the district court will again be faced with the constitutionality of the implemented policy.

In the meantime, the U.S. Supreme Court will soon revisit the issue of legislative prayer in its first case on the subject since Marsh, hopefully providing cities with guidance for crafting constitutionally sound prayer policies.  For a copy of a policy similar to the one just upheld by the 6th Circuit, go to POLICY REGARDING OPENING INVOCATIONS