AUSTIN – A case in which a Jackson County, Michigan man filed an appeal in the United States Court of Appeals for the 6th Circuit against the county, alleging that legislative prayers said during board meetings seems like a simple case.
However, cases like this are rarely as simple as they may seem.
Arnold Loewy, a law professor at Texas Tech, and a George R. Killam Jr. chairman of Criminal Law, told The Record the case provides some interesting angles to consider.
Texas Attorney General Ken Paxton
“One of the problems with the ceremonial prayer with an outsider speaking to the legislative body is a different order than the entity itself being involved in prayer,” he said. “I can understand why a court might see a distinction between the two.”
The case has already taken some interesting turns. Peter C. Bormuth objected to the prayers because he found them “offensive.” He filed a complaint in federal court in Detroit. However, the trial court ruled against him and upheld the prayers before meetings.
Bormuth then appealed his case to the 6th Circuit Court of Appeals. His appeal is attracting some strong opposition.
According to records obtained by The Record, Jackson County has been supported by the state of Texas and 21 other states, which all have filed a brief of amici curiae. The other states include Alabama, Arizona, Arkansas, Colorado, Georgia, Idaho, Indiana, Kansas, Louisiana, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, Tennessee, Utah and West Virginia.
Loewy said the number of states lining up in support of Jackson County and its home state of Michigan isn’t surprising.
“I wouldn’t really expect a state that is opposed to prayer to file a friend of the court brief,” he said. “I might consider that other groups in opposition would make such a move.”
In the friend-of-the-court brief, Texas Attorney General Ken Paxton and other state attorneys general have offered historical and current evidence to show that the practice of legislative prayer includes lawmaker-led prayer.
“Not only has legislative prayer persisted across the country for more than a century, the practice of legislative prayer has persistently included lawmakers themselves exercising their own religious liberty by opening legislative meetings in prayer,” Paxton wrote.
Earlier this year, a three-judge panel heard Bormuth’s appeal and rendered a 2-1 opinion reversing the lower court’s ruling that upheld prayer before meetings. However, the court then vacated the three-judge opinion and has agreed to rehear the case en banc in June. During this process, all active judges consider the case.
Paxton and his colleagues pointed out in the filing that lawmakers lead prayer in one or both legislative chambers in 35 states, including Texas.
Moreover, it also is noted that of the 143 counties in the 6th Circuit that engage in some form of legislative prayer, 73 percent of those counties (i.e., 104 counties) include lawmaker-led prayer in their prayer practice.
According to the friend-of-court filing, lawmaker-led prayer is “constitutionally permissible under Marsh and Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811, because it falls within the tradition of legislative prayer that has been practiced in our country since its founding.”
As a result, it claims reasonable observers who are presumed to be acquainted with this tradition, would recognize that the practice is not coercive.
However, Loewy noted that Greece v. Galloway was a 5-4 decision.
“Kennedy, writing for the majority, went out of his way to keep it as narrow as possible,” he said. “He emphasized that all members of the community could participate. If only the commissioners participate, you obviously don’t have the entire community involved and there is no particular reason to think that the commissioners as a group would represent the populous of the area.”
The Supreme Court also has consistently upheld legislative prayer against Establishment Clause challenges, recognizing that “it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.” Greece, 134S. Ct. 1811, 1819 (citing Marsh).
This historical focus recognizes that “any test the court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.”
As a result, the filing contents the proper focus of the case is to determine whether the prayer practice at issue “fits within the tradition long followed in Congress and the state legislatures.”
According to court documents, a 2002 survey conducted by the National Conference of State Legislatures found that 47 chambers allow people other than the designated legislative chaplain or a visiting chaplain to offer the opening prayer, including “legislators, chamber clerks or other staff.”
Ultimately, Loewy said he wasn’t surprised by the higher court’s decision that overturned the lower court’s ruling. Nor is he surprised the court vacated the three-judge opinion and has agreed to rehear the case en banc.
“It is not like I am shocked the court would have ruled the way it did,” he said. “Greece was an extremely close case. A lot depends on the opportunity of the entire community to participate. It may be more difficult to monitor this if the board is going to lead the prayer.”
Loewy added that the ruling also raises questions about instances when non-Christian board members who don’t offer a prayer that makes everyone happy.
“I think there is a good deal of force to the appellant’s argument,” he added. “Despite the position of the Texas attorney general, this is not an easy case nor is it one that is obviously wrong nor is it one that is directly controlled by Greece v. Galloway.”
Moreover, Loewy added that there are really no cases that are directly linked to this case as precedent. There are some key points in Greece v. Galloway to consider.
“It is very important that the prayer be ceremonial,” he added. “Greece did seem to allow for sectarian prayers if there was some diversity in the people who delivered them.”
The amici states are requesting that the 6th Circuit Court affirm the decision of the district court in support of prayer.