Legislative Prayer Update

On September 6, 2017, the U.S. District Court of Appeals for the Sixth Circuit issued a decision upholding legislative prayer in Bormuth v. County of Jackson, No. 15-1869.  Some reading this may think, wait a second this case was decided this past February and changed our practices. This is true. However, the February 15, 2017 decision was issued by a three-judge panel. On February 27, 2017, the Sixth Circuit decided to rehear the case with all fifteen judges and vacated the previous decision. The underlying complaint alleged that the Jackson County Commission violated the Establishment Clause of the Constitution by asking persons to present to rise and assume a reverent position and a Commissioner offering a Christian prayer.

Bormuth argued that the courts should find the prayer in violation of the Establishment Clause in the Constitution because government officials were giving the prayer and the prayers were all Christian. It was his feeling that when a government official offers a public Christian prayer at a public meeting, it forces those present to worship Jesus Christ if they want to participate in government. He also believed that asking those present to rise and assume a reverent position was unduly coercive, forcing those present to submit to social pressure and worship a specified deity. The primary element of this case that differs from previously decided cases is that individual commissioners were offering the prayer, instead of guest preachers or outside individuals. 

Most cases addressing whether government action has violated the Establishment Clause of the Constitution are subject to the Lemon test under which this case was first decided. Instead, the Sixth Circuit found that different standards apply to legislative prayer as the United States Supreme Court has found that legislative prayer “is deeply embedded in the history and tradition of this country.” Marsh v. Chambers, 463 U.S. 783 (1983).  Instead, courts must focus on “whether the prayer practice fits within the tradition long followed in Congress and the state legislatures.” Town of Greece v. Galloway, 134 S.Ct. 1811, 1819 (2014). Each case overwhelmingly declines to analyze the content of the prayer refusing to subject prayer to a judicial determination of its sectarian nature. Instead the Town of Greece court stated that when the government invites prayer into the public arena it must allow the offeror to pray according to their beliefs.  

What this means for our cities is that if our councils or commissions offer legislative prayer, there is no need to stress over the constitutionality. Instead, there are a few simple guidelines that may help. Is the prayer offered in a manner that allows the offeror to construct their own prayer? Is the council as a whole, mandating what religion or denomination must give the prayer? Is the prayer offered to focus the minds and hearts of the legislative members on their duties as public servants? Has any member of the legislative body commented that the prayer is offered with discriminatory intent? Is there any attempt to require all present to pray or any implication that if someone does not pray that they will not be taken seriously? These are some basic questions that can guide a local legislative body in constructing any prayer practice. As always, we recommend consulting with your city attorney in constructing this type of policy.

A link to the opinion can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0207p-06.pdf

If you have any questions please contact Morgain M. Sprague, KLC Managing Counsel for Member Legal Services at (859) 977-4212.