Please Rise and Bow Your Heads – Your Legislative Prayer is Unconstitutional

Last week, the 6th Circuit Court of Appeal issued a landmark decision prohibiting local government bodies from opening its meeting with a prayer said by one of its own. The facts of the case were undisputed and similar to countless other public meetings held every day. The Jackson County Board of Commissioners opened each meeting with a call to order, after which the chairman directed those in attendance to “rise” and “bow our heads” while the chairman said a prayer. Immediately after the prayer, the Board invited someone to lead attendees in the Pledge of Allegiance. Peter Bormuth, who was a Pagan and an Animist, was uncomfortable with the monthly prayer and believed it violated the Establishment Clause.

Having only two Supreme Court cases to guide its decision, the Court of Appeals had to determine if Jackson County’s practice fell outside the ambit of historically tolerated legislative prayer, and therefore outside the bounds of the Establishment Clause.

The Court of Appeals looked at three factors. First, the identity of prayer giver. According to the Court, when the Board of Commissioners opened its monthly meeting with a prayer, said by the Chairman, there was no distinction between the government and the prayer giver; they are one and the same. Second, because only the Commissioners were responsible for the prayer content, the prayer content was exclusively Christian. As such, the Commissioners effectively were endorsing a specific religion. Finally, because of the small and intimate setting of a local government meeting, where those in attendance are there to address issues immediately affecting their lives, there existed an element of coercion. The Chairman essentially directed the public to participate in the prayer, and his words are “cloaked in procedural formality.”

According to the Court of Appeals “the Board of Commissioners’ used prayer to begin its monthly meeting 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.” Bormuth v. County of Jackson, Case No. 15-1869.