This is a story that I missed last week, but it’s too important not to mention.
You may recall that the Supreme Court decided not to hear a case involving invocation prayers in Rowan County, North Carolina. That was great news because it meant the Board of Commissioners’ practice of opening meetings with (almost entirely) Christian prayers would remain illegal, as the full Fourth Circuit Court of Appeals had ruled.
But on the same day that happened, they also chose not to hear a case involving invocation prayers by the Jackson County Board of Commissioners in Michigan. It’s a decision that will lead to all kinds of confusion, and it’s worth understanding why.
The controversy began in 2013. At the time, the elected officials were delivering their own Christian prayers in lieu of a generic invocation delivered by different local religious and non-religious leaders.
When resident Peter Bormuth, a Pagan, argued that this was a violation of the law, since it was government endorsement of Christianity, the Commissioners dismissed his concerns. One of them literally turned his back on Bormuth.
So Bormuth filed a pro se lawsuit (in which he represented himself) against the County, Then things got worse.
Americans United for Separation of Church and State explained it like this:
… one of the Commissioners publicly referred to him as a “nitwit.” Another warned against allowing invited guests to give invocations for fear that they would express non-Christian religious beliefs. Still another described the lawsuit as “an attack on Christianity, and… an attack on our Lord and Savior Jesus Christ.”
Their concern was obvious: They didn’t want to cede prayer power to any non-Christian. Bormuth’s concern was entirely accurate.
A magistrate judge eventually said that summary judgment should be granted in Bormuth’s favor… but a District Judge ignored the recommendation and ruled in favor of the County. The case was then kicked up to the Sixth Circuit Court of Appeals. By the time this was all happening, it was 2015.
Americans United filed an amicus brief in Bormuth’s defense reiterating all the problems with the Commissioners’ actions: They promoted Christianity, coerced religious participation by asking the audience to bow their heads during the prayers, and mocked anyone who disagreed:
“There are more than 160,000 people residing in Jackson County, and I’m sure not all of them are Christians,” said the Rev. Barry W. Lynn, executive director of Americans United. “Jackson County’s commissioners must adopt a more inclusive policy for invocations and stop pressuring its citizens to participate in unwanted prayers.”
All of this sounded perfectly reasonable. Bormuth was asking for religious neutrality. The County was asking for Christian privilege. And that’s how the Appeals Court saw it, too. In a 2-1 ruling, they correctly ruled against the County.
They said the prayers offered at those meetings were not the sort of prayers that pass legal muster:
… When the Board of Commissioners opens its monthly meetings with prayers, there is no distinction between the government and the prayer giver: they are one and the same. The prayers, in Bormuth’s words, are literally “governmental speech.”
The Jackson County Board of Commissioners’ affirmative exclusion of non Christian prayers puts one faith, Christianity, in a privileged position. It ensures that only Christians will hear prayers that speak to their religious beliefs at Board of Commissioners meetings. Worse, it ensures that only Christians will hear prayers that speak to their religious beliefs because the government has singled out Christian prayer as uniquely able to solemnize these meetings. The affirmative exclusion thus advances one faith over others.
Accordingly, we hold that the Board of Commissioners’ use of prayer to begin its monthly meetings violates the First Amendment’s Establishment Clause. The prayer practice is well outside the tradition of historically tolerated prayer, and it coerces Jackson County residents to support and participate in the exercise of religion.
This should have been the end of the issue. It matched up with all the legal precedent and there was no reason to think any higher court would overturn the decision… but the County, in February of 2017, voted unanimously to ask the entire Sixth Circuit to rehear this matter. Even if the three-judge panel said they were wrong, perhaps the rest of the judges would see things their way. It was a long shot, to say the least.
Sadly, it worked. The full 15-member Sixth Circuit overturned the earlier ruling 9-6.
In an opinion on behalf of nine judges, the court today concluded that the county’s practice does not impermissibly endorse Christianity because it is possible that a non-Christian could one day be elected to the commission and then lead the board in the occasional non-Christian prayer. The majority also concluded that the attacks on Bormuth did not raise constitutional red flags because they did not antagonize Bormuth on the specific basis of his religious beliefs.
That was a messed up way of thinking. It gave power to the religious majority at the exclusion of those who couldn’t get elected precisely because of their religious beliefs. The Court claimed that Bormuth could give a Pagan prayer if elected to the Commission, but by not even allowing him to deliver an invocation, the government was basically keeping him down, treating him like an “other,” and suggesting that his beliefs weren’t worth hearing.
As one of the six dissenting judges said, “Voting for representatives based on what prayers they say is precisely what the First Amendment’s religion clauses seek to prevent.” The decision just codified Christianity as the county’s religion since no one else was allowed to give a prayer at County Board meetings unless they were popular enough to get elected.
That’s why the Supreme Court was essential to this issue.
We now had the Sixth Circuit saying county-led Christian prayers were legal, while the Fourth Circuit said county-led Christian prayers were illegal. Having two different Appeals Courts split on the same issue is one of the key ingredients that the Supreme Court looks at when deciding whether or not to hear certain cases. And if Anthony Kennedy was a swing vote, there was a chance he would’ve sided with the church/state separation crowd.
But before he announced his retirement last week, the Supreme Court said they wouldn’t hear either one of the cases. Unlike most cases they choose not to hear, though, this one came with a dissent from Clarence Thomas, joined by Neil Gorsuch.
Thomas wrote — correctly, I would add — that the Court should’ve heard these cases to resolve the matter:
… the Sixth and Fourth Circuits are now split on the legality of legislator-led prayer. State and local lawmakers can lead prayers in Tennessee, Kentucky, Ohio, and Michigan, but not in South Carolina, North Carolina, Virginia, Maryland, or West Virginia. This Court should have stepped in to resolve this conflict.
Make no mistake, Thomas and Gorsuch almost certainly would’ve voted to allow the prayers everywhere. But Thomas is correct in saying that the issue of whether politician-led, Christian-only prayers are legal remains up in the air. It just depends on where you live.
That’s not how the First Amendment should work.
We may welcome that lack of resolution now that Kennedy is retiring since it means Christian-only prayers remain illegal in some states — but at some point, this issue will have to get resolved. Hopefully, the makeup of the Supreme Court will be more favorable when that day comes.