The Potter Stewart U.S. Courthouse in Cincinnati is the home of the U.S. Circuit Court of Appeals for the Sixth Circuit.
PHOTO COURTESY OF THE SIXTH CIRCUIT COURTE
by Cynthia Price
Legal News
The United States Sixth Circuit Court of Appeals issued a widely-reported ruling in a case with local connections concerning prayer at governmental meeting, Bormuth v. Jackson County, on Feb. 15.
On Feb. 27, the court vacated that ruling and announced it will hear the case en banc.
It should be noted that this, by design, happens rarely. The court‘s Rule 35(a) provides that en banc hearing is not favored and ordinarily will not be ordered unless (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.
And, as Varnum attorney Maureen O’Brien stated in a note added to a blog she wrote at the time of the original ruling’s release, that means “Bormuth is currently docketed as a pending appeal and as of now, the previous Sixth Circuit decision no longer controls.”
The facts of the case are fairly simple: an individual named Peter Bormuth attended meetings of the Jackson County Commission, where commissioners took turn giving a prayer before the meeting started. Bormuth, who is an animist and a pagan, found the clearly Christian nature of the prayers offensive, and filed suit under the Establishment Clause of the U.S. Constitution.
The case law, however, is not simple. Two decisions of the Supreme Court, Marsh v. Chambers (1983) and Town of Greece v. Galloway (2014) govern.
Unsuccessful at the District Court level, the pro se Bormuth, until Feb. 27, prevailed at the Sixth Circuit in a decision where Judge Karen Nelson Moore and Judge Jane Branstetter Stranch agreed with him, while Judge Richard Allen Griffin did not.
In writing the majority opinion, Judge Moore argued that the decision was very much in keeping with Town of Greece v. Galloway, but in his dissent, Judge Allen did not.
As O’Brien noted in her blog, there were two controversial issues. First, she writes, “[T]he Sixth Circuit distinguished the present case from Town of Greece. First, the prayer givers in Town of Greece were guest ministers and not governmental employees. The Sixth Circuit stated that because the prayers were exclusively Christian and conducted by the Commissioners, not ministers, the Commissioners were effectively endorsing a specific religion.”
The second is the trickier issue, largely because the SCOTUS 5-4 decision also involved a further division in terms of interpretation. It concerns whether or not the facts showed coercion, in particular considering that Bormuth had matters he wanted the Jackson County Commission to consider.
Judge Moore writes that Justice Anthony Kennedy’s interpretation represents the “narrowest grounds,” and therefore considered the question of coercion under his dictum that the Town of Greece “analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.”
Justice Kennedy added in his own of Greece majority opinion (which only two justices signed) that “[i]t is an elemental First Amendment principle that government may not coerce its citizens ‘to support or participate in any religion or its exercise.’” (The justice’s quote is from Cty. of Allegheny.)
For a variety of reasons, such as the fact that commissioners directed meeting attendees to rise and bow their heads, and that one of the commissioners turned around so his back was to Bormuth when he spoke in the public comment period about the prayers, the majority opinion is that it was coercion.
Or as O’Brien writes about the opinion, “given the intimate nature of small local government meetings, there is increased pressure on Jackson County residents to participate in the prayer with the Commissioners they are there to petition. In essence, residents would feel obligated to participate in the prayer so as not to offend the Commissioners in a manner that would result in the resident's petition being ignored.”
O’Brien later restated, “Not a lot of people go to these meetings, so if people are being specifically asked to stand, because it is such a small meeting, you definitely stand out. And because the commission members were so overwhelmingly Christian, a question of ostracization definitely came in. Bormuth said it had ramifications for him afterwards when he applied to be on a county committee.”
There is another case, heard by the Fourth Circuit, that has bearing. The dissent contends that its “view as to the constitutionality of Jackson County’s invocation practice is consistent with the Fourth Circuit’s recent opinion in Lund v. Rowan County.” Dissent at 61. The Fourth Circuit has granted rehearing en banc in Lund, undercutting the persuasive value of the now-questioned panel majority,” as Judge Moore writes, ironically since that situation will now also be the case with Bormuth.
“The facts of the two cases are really similar. If you go to the dissent, it’s pretty clear the majority overstates the differences,” O’Brien comments.
She points out that the Sixth Circuit has not released information about the reasons for deciding to hear the case en banc, but that it is an extraordinary situation.
Though Lansing attorney Richard McNulty of Cohl Doker and Toskey represented Jackson County in the first go-round at the Sixth Circuit, a non-profit law firm has now taken over.
First Liberty Institute, which staff attorney Ken Klukowski says is “the largest law firm in the U.S. exclusively dedicated to protecting religious liberty,” is also representing Rowan County in Lund v. Rowan County.
Klukowski says, “First Liberty Institute and our volunteer lead counsel are honored to have the opportunity to appear at the en banc proceedings. The Supreme Court has twice held that opening governmental meetings with a prayer that solemnizes the event is completely consistent with the U.S. Constitution, and we look forward to having the chance to make those arguments before the full Sixth Circuit of appeals.”
Allyson Ho of Morgan Lewis and Bochius in Texas will be the lead counsel.
“Both First Liberty and Allyson are representing the county pro bono,” Klukowski explains.
To read O’Brien’s blog, which she says will be updated as matters change, visit http://www.varnumlaw.com/blogs/varnum-etc/recent-sixth-circuit-ruling-impacts-prayer-at-public-meetings/
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