The entire Sixth Circuit heard debate Wednesday over the constitutionality of a Michigan county’s practice of opening board meetings with a commissioner-led prayer, after the court vacated a three-judge panel’s ruling against the prayer and agreed to decide the case en banc.
The arguments included remarks from four parties: pro se plaintiff Peter Bormuth; Jackson County, Michigan; the state of Michigan, as an amicus party; and Americans United for Separation of Church and State, also as an amicus party.
Bormuth opened proceedings and argued that the commissioners’ practice is not a “historical tradition” and therefore is not protected under the U.S. Supreme Court’s decision in Town of Greece v. Galloway, a 2014 decision in which the justices ruled 5-4 that the town’s practice of having volunteer chaplains open meetings with a prayer did not violate the First Amendment’s Establishment Clause.
Bormuth called the prayer a “modern practice” and claimed to have attended Jackson County commissioners’ meetings in 1971 and 1988, during which no prayers were said.
He distinguished the county’s practice from that in Greece and said that because no minority religions were given the opportunity to lead the prayer, the commissioners act as “supervisors and censors.”
He said he felt compelled to stand when the commissioners asked those in attendance to do so, and that the language used was “a command.”
Richard Katskee, on behalf of Americans United for Separation of Church and State, argued that Jackson County’s practice “is far more coercive” than the one found in Greece.
Judge Jeffrey Sutton asked Katskee, “Is the problem is that they have to stand up? I think that’s easy to reject.”
Katskee said because the commissioners are leading the prayer, it is inherently more coercive.
He cited the “barren record” of the current case, in which Bormuth was not allowed to depose any of the commissioners about the practice or their alleged discrimination against him.
Judge Alice Batchelder contested this point, and reminded the attorney that Bormuth filed for summary judgment in the district court.
“Does he get to go back for more discovery?” she asked.
Katskee answered that competing motions for summary judgment do not resolve all issues of fact, and that Bormuth is also entitled to additional leeway as a pro se litigant.
Allyson Ho, attorney for Jackson County, described the prayer practice as “brief, respectful, and solemn,” but was questioned by Judge Jane Branstetter Stranch about the commissioners’ behavior toward Bormuth.
Specifically, Judge Stranch mentioned an instance in which a commissioner turned his back on Bormuth and walked out of the meeting when Bormuth voiced his objection to the opening prayer.
Ho said the behavior was “disrespectful,” but that one isolated incident does not mean the practice as a whole is unconstitutional.
She told the court that every argument advanced by Bormuth and Americans United was made – and rejected – in the Greece case.
Judge Stranch asked why the “totality of the circumstances” in the current case distinguishes it from Greece.
Ho responded that “even if you include all of the evidence not presented at the district court and improperly presented here today,” it does not rise to the level required to sustain Bormuth’s Establishment Clause case.
In his rebuttal, Bormuth again stressed the lack of a historical tradition of legislator-led prayer.
He claimed Jackson County had submitted 25 “random examples” of legislators leading prayers, but that all of those examples include legislators who were also ministers.
In a spirited conclusion, he said the Christian commissioners “have an exclusive lock on this franchise” because the county is “70 percent Christian.”
“Thomas Jefferson wrote letters and rode his horse all over Virginia and the colonies talking, convincing his contemporaries to keep God out of the constitution,” Bormuth said. “And with Madison’s help, he succeeded. Ever since, my friends here have been trying to slip God back in.”
Bormuth has previously persuaded a Sixth Circuit panel to reverse a lower court ruling that upheld the county’s practice as constitutional.
A sua sponte poll of the Sixth Circuit judges compelled an en banc hearing, however, less than two weeks after the panel’s ruling.
It is unclear when the full Sixth Circuit will issue its decision.