Court Victory for Public Prayer

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by Bradley Eli, M.Div., Ma.Th.  •  •  September 7, 2017   

Attorney: "It's a big win for religious liberty"

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CINCINNATI, Ohio ( - A federal court is upholding the right of government officials to begin meetings with prayer. The 6th U.S. Circuit Court of Appeals sitting en banc Wednesday sided with the Board of Commissioners of Jackson County, Michigan, in a 9–6 decision, upholding the board's right to open meetings with an invocation. 

In his majority opinion Judge Richard Griffin wrote, "Since the founding of our Republic, Congress, state legislatures and many municipal bodies have commenced legislative sessions with a prayer. Consonant with historical practice, defendant Jackson County Board of Commissioners opens its public meetings with a prayer that is generally solemn, respectful and reflective."

Following the ruling, Ken Klukowski, senior counsel at First Liberty, the legal organization representing the commissioners, commented, "Today's decision further solidifies what the U.S. Supreme Court has now twice said: Invocations before government meetings are constitutional and an important part of our nation's history and heritage."

The Jackson County Board of Commissioners, a nine-member board of elected officials, would take turns opening their monthly assemblies with a personal invocation consisting of a spontaneous prayer or a moment of silence. The prayer became an issue in 2013 when a local resident, Peter Bormuth, a self-described pagan and animist, sued the board, claiming their actions violated the First Amendment's Establishment Clause, which bars the government from favoring a particular religion. In 2015, the U.S. district court denied Bormuth's claim and affirmed the prayer offered by individual commissioners wasn't unconstitutional.

Bormuth appealed the district court ruling, sending the case to a three-judge panel of the 6th Circuit, which sided with Bormuth in February in a split decision. The commissioners decided to appeal the case to the 6th Circuit's full panel of judges after First Liberty, a nonprofit group specializing in religious liberty cases, agreed to represent them pro bono.

Wednesday's ruling by the full assembly of judges overturns the previous split decision rendered by the three-judge panel in the same court in February. Siding with the majority on Wednesday, Judge Griffin wrote, "[W]e hold that Jackson County's invocation practice is consistent with the Supreme Court's legislative prayer decisions, Marsh v. Chambers ... and Town of Greece v. Galloway ... and does not violate the Establishment Clause."

Griffin further explained, "The Board's invocation practice is facially neutral regarding religion. … Neither other Commissioners, nor the Board as a whole review or approve the content of the invocations. There is no evidence that the Board adopted this practice with any discriminatory intent."

The court faithfully followed controlling Supreme Court precedent.

After the ruling, Klukowski remarked, "Well, we applaud the 6th Circuit for its decision today. The court faithfully followed controlling Supreme Court precedent, and it's a big win for religious liberty consistent with the Constitution." The circuit courts, however, are split on this issue. A full bench of the 4th U.S. Circuit Court of Appeals ruled just the opposite in July, saying similar prayers by Rowan County commissioners violated the First Amendment's Establishment Clause.

Klukowski the point of issue: "The 6th Circuit, correctly in our view, reached exactly the opposite conclusion, saying that the fact that the person offering prayers happens to hold public office – that in and of itself doesn't coerce anyone." He added:

So long as the government does not take an official action against you to retaliate for the fact that you don't like their religious activity — or is somehow taking official action to denigrate you, to go after you — so long as that's not happening, the Establishment Clause permits various practices that all sorts of us on an individual level might not personally agree with."


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