Michigan Commissioners Court Can No Longer Open Meetings with Prayer (Unconstitutional) (2/16/2017)
Why Does Somervell County Commissioners Court Continue to Do So?
Michigan Commissioners Court Can No Longer Open Meetings with Prayer (Unconstitutional) (2/16/2017)
16 February 2017 at 7:19:49 PM
from the 6th US Circuit Court of Appeals (PDF) (Picture at left is Larry Hulsey, Somervell County Commissioner, leading, from the dais, a non-inclusive prayer.)
It appears from the lawsuit that the Michigan district court originally ruled for the Commissioners. (bolding mine)
The district court then turned to the merits of Bormuth’s Establishment Clause claim. The district court considered the content of the Board of Commissioners’ prayers first, and concluded that, although the prayers were “exclusively Christian,” they were composed of only “benign religious references”—making Bormuth’s reaction to them “hypersensitive.” R. 61 (Dist. Ct. Op. at 7‒8) (Page ID #1057‒58). “The fact that all nine of the Commissioners are Christian,” the district court stated, “is immaterial, [because] [a]s elected officials, they were chosen as representatives whose interests were most closely aligned with the public’s, and their personal beliefs are therefore a reflection of the community’s own overwhelmingly Christian demographic.” Id. at 7 (Page ID #1057). Turning to whether the Board of Commissioners’ practice was coercive, the district court noted that Bormuth could have left the room during the prayers, and that nothing in the record indicated that his absence would have been perceived as disrespectful. Id. at 12‒13 (Page ID #1062‒63). Accordingly, the district court held that “Bormuth’s subjective sense of affront resulting from exposure to sectarian prayer is insufficient
to sustain an Establishment Clause violation.” Id. at 13 (Page ID #1063) (emphasis removed). Although the district court acknowledged that some citizens may not perceive statements such as “rise” and “assume a reverent position,” see, e.g., R. 10 (Am. Compl. ¶ 19) (Page ID #64‒65), as the mere “voluntary invitations” that the district court believed they were, the district court did not discuss the point further, R. 61 (Dist. Ct. Op. at 13‒14) (Page ID #1063‒64).
Bormuth appealed in US Circuit Court of Appeals (6th) part of that opinon
The opinion then observed, importantly for our purpose, that “[t]he 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.” Id. at 1826. The opinion further noted that “[n]othing in the record indicates that town leaders allocated benefits and burdens based on participation in the prayer, or that citizens were received differently depending on whether they joined the invocation or quietly declined,” and finally, that “[i]n no instance did town leaders signal disfavor toward nonparticipants or suggest that their stature in the community was in any way diminished.” Id
3. Whether the Board of Commissioners’ Practice Falls Within the Tradition of Legislative Prayer We now turn to whether the Board of Commissioners’ practice falls within the tradition of legislative prayer. It does not. A combination of factors distinguishes this case from the practice upheld in Marsh and Town of Greece, including one important factor: the identity of the prayer giver. In Marsh, the Nebraska legislature opened its session with a prayer offered by a chaplain, 463 U.S. at 784; in Town of Greece, invited clergy and laypersons delivered the invocations, 134 S. Ct. at 1816‒17. Here, the Jackson County Commissioners give the prayers. See R. 10 (Am. Compl. ¶¶ 19‒23) (Page ID #64‒66). The difference is not superficial. 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.”5 R. 29 (Pl. Resp. to Def. Mot. for Summ. J. at 1) (Page ID #318). Legislator-led prayer at the local level falls far afield of the historical tradition upheld in Marsh and Town of Greece. The setting of the prayer practice by the Jackson County Board of Commissioners—a local governing body with constituent petitioners in the audience—amplifies the importance of the identity of the prayer giver in our analysis, and heightens the risks of coercion, as borne out by the facts in this case. See infra at 33–34 [¶¶ 68–69]; see also Town of Greece, 134 S. Ct. at 1826 (distinguishing solicitations to pray by guest ministers from those by town leaders, noting that “[t]he analysis would be different if town board members” themselves engaged in the same actions). a. Whether the Board of Commissioners’ Practice Strays from the Traditional Purpose and Effect of Legislative Prayer: Respectful Solemnification The identity of the prayer giver distinguishes the Board of Commissioners’ practice from the practices upheld in Marsh and Town of Greece and leads to other problems with the Board of Commissioners’ practice. Because they are the ones delivering the prayers, the Commissioners—and only the Commissioners—are responsible for the prayers’ content. See id. And because that content is exclusively Christian, by delivering the prayers, the Commissioners are effectively endorsing a specific religion.6
There are no opportunities for persons of other faiths to counteract this endorsement by offering invocations. In Town of Greece, the Supreme Court upheld the town’s prayer practice in large part because it included prayers representing a variety of faiths. Although initially all of the prayer givers were Christian ministers, eventually the town invited a Jewish layman and the chairman of the local Baha’i temple to deliver invocations. See Town of Greece, 134 S. Ct. at 1817. When a Wiccan priestess asked for an opportunity to deliver the invocation, the town granted her request. Id. The Supreme Court emphasized that, “The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one.” Town of Greece, 134 S. Ct. at 1824; see also id. at 1829 (Alito, J., concurring) (“[T]he town made it clear that it would permit any interested residents, including nonbelievers, to provide an invocation, and the town has never refused a request to offer an invocation. . . . The most recent list in the record of persons available to provide an invocation includes representatives of many non-Christian faiths.”). In Jackson County, there is no opportunity for members of other faiths to offer invocations. Instead, there are exclusively Christian prayer givers and a pattern of explicitly Christian prayers. What is more, the prayer givers are exclusively Christian because of an intentional decision by the Board of Commissioners. Unlike in Town of Greece, where the Court found no evidence of sectarian motive in the selection of speakers, at least one Jackson County Commissioner admitted that, in order to control the prayers’ content, he did not want to invite the public to give prayers. At a November 2013 meeting of the Personnel & Finance Committee, one of the Commissioners imagined what would happen if any Jackson County resident could lead the prayer: We all know that any one of us could go online and become an ordained minister in about ten minutes. Um, so if somebody from the public wants to come before us and say that they are an ordained minister we are going to have to allow them as well.
County of Jackson, Personnel & Finance Committee November 12, 2013 Jackson County, MI, YouTube (Dec. 19, 2013), http://tinyurl.com/2013nov12 (37:47‒38:01).7 He continued: And I think we are opening a Pandora’s Box here because you are going to get members of the public who are going to come up at public comment and we are going to create a lot of problems here when certain people come up here and say things that they are not going to like. Id. at 38:02‒38:16. These comments reveal that the Board of Commissioners’ control over the content of the prayers is not just a function of the Commissioners’ role as prayer givers—it is the result of an affirmative decision by the Commissioners to exclude other prayer givers.8 The Board of Commissioners, in other words, is limiting who can give the prayers in order to control the prayers’ content.9 And the effect is preventing participation by religious minorities and endorsing a specific religion. This brings the County’s use of prayer to open its monthly meetings well outside the ambit of historically tolerated legislative prayer. Amicus offers another way in which the Board of Commissioners’ practice differs from previously upheld practices: its purpose is to promote religion to the public. The Supreme Court found that the prayers in Town of Greece were “intended to place town board members in a solemn and deliberative frame of mind,” 134 S. Ct. at 1816, and that this was in line with historical practice, as the purpose of legislative prayer is to “accommodate the spiritual needs of lawmakers,” id. at 1826 (controlling opinion). Amicus contends, however, that the Jackson County Commissioners cannot claim that their prayers are purely “an internal act.” Id. at 1825 (quoting Chambers, 504 F. Supp. at 588). According to Amicus, “[t]he only meeting of the full Board of Commissioners during the past two years when no prayer was offered was the meeting that no members of the public attended.” Amicus Br. at 12 (citing County of Jackson, November 6, 2014 Special Jackson County Board of Commissioners Meeting Video, YouTube (Nov. 7, 2014), http://tinyurl.com/2014nov6 (0:01–0:47)). Thus, although Town of Greece stated that prayer should not be used “to afford government an opportunity to proselytize or force truant constituents into the pews,” 134 S. Ct. at 1825 (controlling opinion), Amicus insists that the County is doing exactly that: “when members of the public are present, it preaches to them and directs them to participate; when only the Commissioners are present, they omit the prayer entirely,” Amicus Br. at 13.
We hold that the Board of Commissioners’ practice strays from the traditional purpose and effect of legislative prayer. A confluence of factors distinguishes the Jackson County practice from the practices upheld in Marsh and Town of Greece. These factors include the deliverance of the invocations by the Commissioners themselves in a local setting with constituent petitioners in the audience, as well as the Board’s intentional decision to exclude other prayer givers in order to control the content of the prayers. We now consider, as a second “independent but mutually reinforcing reason” why the prayer practice here falls outside the protective umbrella of tradition, whether the Board of Commissioners’ practice is coercive. Town of Greece, 134 S. Ct. at 1820. And as stated above, we proceed with the understanding that Justice Kennedy’s conception of coercion is controlling. b. Whether the Board of Commissioners’ Practice Is Unconstitutionally Coercive As the controlling opinion of the Court held in Town of Greece, “[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.’” Id. at 1825 (quoting Cty. of Allegheny, 492 U.S. at 659 (Kennedy, J., concurring in judgment in part and dissenting in part)). The inquiry into whether the government has violated this principle is “a fact-sensitive one that considers both the setting in which the prayer arises and the audience to whom it is directed.” Id. Although the Court in Town of Greece concluded that there was no evidence of coercion in the record before it, it held that “[t]he 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.” Id. at 1826. All three elements are present here. First, the Board of Commissioners directs the public to participate in the prayers at every monthly meeting. As the Supreme Court has observed, the source of these statements is significant. In Town of Greece, “board members themselves stood, bowed their heads, or made the sign of the cross during the prayer,” but “they at no point solicited similar gestures by the public.” Id. (emphasis added). Rather, it was the clergy who asked audience members to participate in the prayer. Id. The Supreme Court reasoned that, because this direction came from the clergy, it was inclusive, not coercive. Id. Here, it is the Board of Commissioners, and the Board of Commissioners only, that tells the public to join in the prayer. What is more, these instructions are almost always from the Chairman. See, e.g., R. 10 (Am. Compl. ¶¶ 19‒23) (Page ID #64‒66). The Chairman presides over the meeting; his words are cloaked in procedural formality. The words “rise” and “assume a reverent position” from the Chairman, therefore, are not mere suggestions, they are commands. But even in the infrequent instances where it is the Commissioner giving the prayer who tells the public to “rise” or to “bow [their] head[s],” R. 29- 1 (Pl. Resp. to Def. Mot. for Summ. J., Ex. E ¶¶ 9, 13, 22) (Page ID #370‒71), the effect is the same: to coerce the public to participate in the exercise of religion. This coercion is compounded by the setting in which it is exerted. See Town of Greece, 134 S. Ct. at 1825 (controlling opinion). Local government meetings are small and intimate. And unlike in federal and state legislative sessions, where the public does not speak to the legislative body except by invitation, citizens attend local government meetings to address issues immediately affecting their lives. Indeed, as Amicus notes, Jackson County residents have gone to the Board of Commissioners’ monthly meetings to ask for funding for disabled students’ transportation to school, County of Jackson, June 18, 2013 Jackson County Board of Commissioners Meeting, YouTube (Jun.19, 2013), http://tinyurl.com/2013jun19 (35:53–38:30), request repairs to roads leading to their homes or businesses, County of Jackson, July 23, 2013 Jackson County Board of Commissioners Meeting, YouTube (Jul. 24, 2013), http://tinyurl.com/2015jul23 (24:58–30:19), and redress discrimination, County of Jackson, March 17, 2015 Jackson County Board of Commissioners Meeting, YouTube (Mar. 18, 2015), http://tinyurl.com/2015mar17c (5:27–7:42). Thus, there is increased pressure on Jackson County residents to follow the Board of Commissioners’ instructions at these meetings, as the residents would not want to offend the local government officials they are petitioning.
Two factual details about Jackson County’s prayer practice bear emphasis. First, the Jackson County Board of Commissioners affirmatively excluded non-Christian prayer givers, and did so in an effort to control the content of prayers. See County of Jackson, Personnel & Finance Committee November 12, 2013 Jackson County, MI, YouTube (Dec. 19, 2013), http://tinyurl.com/2013nov12 (37:47–38:16). Second, Commissioners attempted to silence Bormuth and insulted him for criticizing their prayer practice. For example, when Bormuth voiced his concern about the prayer practice at a meeting, a Commissioner turned his chair around, refusing to listen to him. R. 10 (Am. Compl. at ¶ 31) (Page ID #69). One Commissioner said that Bormuth was “attacking . . . my Lord and savior Jesus Christ.” R. 14 (Pl. First Mot. for Summ. J., Ex. C) (Page ID #149). Separately, a Commissioner referred to Bormuth as “a nitwit.” County of Jackson, Personnel & Finance Committee November 12, 2013 Jackson County, MI, YouTube (Dec. 19, 2013), http://tinyurl.com/2013nov12 (32:50–32:59, 43:00– 43:18, 43:22–43:41). These facts show how far Jackson County’s practice strays from the historically tolerated tradition of legislative prayer. There is no question that factual details are relevant to the Establishment Clause inquiry. In Town of Greece, the Supreme Court made clear that its decision about the Town of Greece’s prayer practice did not absolve courts of the duty to evaluate the constitutionality of factually distinguishable prayer practices. “Courts remain free to review the pattern of prayers over time to determine whether they comport with the tradition of solemn, respectful prayer approved in Marsh, or whether coercion is a real and substantial likelihood.” Town of Greece, 134 S. Ct. at 1826–27. “If circumstances arise in which the pattern and practice of ceremonial, legislative prayer is alleged to be a means to coerce or intimidate others, the objection can be addressed in the regular course.” Id. at 1826; see also Marsh, 463 U.S. at 795. Jackson County’s prayer practice gives rise to just those circumstances.
Next is a reference to a case which is pending in US Circuit Appeals Court- for Rowan Co NC commissioner prayer
On the first point, the Lund dissent, which is much more convincing than the majority opinion, supports our conclusions in this case. Judge Wilkinson’s dissent explains, persuasively, that Town of Greece “in no way sought to dictate the outcome of every legislative prayer case. Nor did it suggest that ‘no constraints remain on [prayer] content.’” Lund v. Rowan Cty., 837 F.3d 407, 433 (4th Cir. 2016) (Wilkinson, J., dissenting) (quoting Town of Greece, 134 S. Ct. at 1823) (alterations in original). While Judge Wilkinson indicates that he “would not for a moment cast all legislator-led prayer as constitutionally suspect,” he also understands that, per Town of Greece, “[t]he Establishment Clause still cannot play host to prayers that ‘over time . . . denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.’” Lund, 837 F.3d at 431 (Wilkinson, J., dissenting) (quoting Town of Greece, 134 S. Ct. at 1823). He acknowledges that, “[l]egislator-led prayer, when combined with the other elements, poses a danger not present when ministers lead prayers. The Rowan County commissioners, when assembled in their regular public meetings, are the very embodiment of the state.” Lund, 837 F.3d at 434 (Wilkinson, J., dissenting). Accordingly, Judge Wilkinson determines that the Rowan County Board of Commissioners’ prayer practice is unconstitutional because the “combination of legislators as the sole prayer-givers, official invitation for audience participation, consistently sectarian prayers referencing but a single faith, and the intimacy of a local governmental setting exceeds even a broad reading of Town of Greece.” Id. at 431. Judge Wilkinson also rightly points out that there are many ways to solemnize a county board meeting without running afoul of the Establishment Clause. A county board “can solemnize its meetings without creating such tensions” by using “non-denominational prayers or diverse prayer-givers” or prefacing the prayer with a “Message of Religious Welcome” emphasizing that members of all religions (or no religion) are welcome in the meeting and community. Id. at 437–38. “Such an expression of religious freedom and inclusion would promote the core idea behind legislative prayer, ‘that people of many faiths may be united in a community of tolerance and devotion.’” Id. at 438 (quoting Town of Greece, 134 S. Ct. at 1823). The combination of factors that, according to Judge Wilkinson, renders the Rowan County Board’s prayer practice unconstitutional also exists in Jackson County (and Jackson County’s practice included additional factors that make it even more constitutionally suspect, as discussed below). Additionally, Judge Wilkinson’s observation that a county can easily solemnize county board meetings and comply with the Establishment Clause is as true in Jackson County as in Rowan County.
Based on this determination, the Lund majority concluded that, “[t]he Board’s practice here, where each commissioner gives their own prayer without oversight, input, or direction by the Board simply does not present the same concerns of the ‘government [attempting] to define permissible categories of religious speech.’” Id. at 420 (quoting Town of Greece, 134 S. Ct. at 1822) (emphasis and second alteration in original). Even if this assessment is correct, there is a difference between the actions of the Rowan County Board and those of the Jackson County Board: Unlike the Rowan County Board, the Jackson County Board, as a governing body, did affirmatively exclude other prayer givers in order to control the content of the prayers. See County of Jackson, Personnel & Finance Committee November 12, 2013 Jackson County, MI, YouTube (Dec. 19, 2013), http://tinyurl.com/2013nov12 (37:47–38:16). By excluding other prayer givers to control the content of prayers, the Jackson County Board was exercising “oversight” and “‘[attempting] to define permissible categories of religious speech.’” Lund, 837 F.3d at 420 (quoting Town of Greece, 134 S. Ct. at 1822) (alteration in original)
Considering the content of the prayers over time, we must be mindful of the difference between unthinkingly failing to include non-Christian prayer, as the Rowan County Board apparently did, and intentionally excluding non-Christian prayer, as the Jackson County Board did. Unthinkingly excluding non-Christian prayer does not necessarily equate to denigrating other religions. The Jackson County Commissioners’ affirmative decision to exclude other prayer givers to ensure that any sectarian content would be Christian, on the other hand, does denigrate other religions. Affirmative exclusion communicates that non-Christian prayers are not welcome, which communicates that non-Christians are not welcome. Affirmative exclusion also communicates that only Christian prayers are adequate to solemnize county board meetings, which communicates that other prayers are inferior. Indicating that only Christians are welcome and that other prayers are inferior denigrates other religions. The Jackson County Board of Commissioners’ affirmative decision to exclude other prayer givers is also relevant to the third Lund panel majority guidepost, “the selection of the prayer-giver.” Lund, 837 F.3d at 423. The Lund majority notes that in Town of Greece, the Supreme Court upheld the town’s practice because the town “‘represented that it would welcome a prayer by any minister or layman who wished to give one,’” which indicated that the town “‘maintain[ed] a policy of nondiscrimination.’” Id. (quoting Town of Greece, 134 S. Ct. at 1824). Even if the Rowan County Board’s decision to allow only Commissioners to give prayers can somehow be characterized as “‘a policy of nondiscrimination,’” the Jackson County Board did discriminate. Lund, 837 F.3d at 423 (quoting Town of Greece, 134 S. Ct. at 1824). To exclude prayers that Jackson County Commissioners did not want to hear, the Board of Commissioners forbade anyone but Commissioners from giving prayers. Excluding unwanted prayers is not a policy of nondiscrimination. Excluding unwanted prayers is discrimination.
Finally, the Jackson County Board of Commissioners’ affirmative decision to exclude other prayer givers is also significant when considering the fourth Lund guidepost, whether “‘over time’” “‘the prayer practice’” was “‘exploited to . . . advance any one . . . faith or belief.’” Lund, 837 F.3d at 424 (quoting Town of Greece, 134 S. Ct. at 1823) (alterations in original). 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.10
Just a reminder that Judge Danny Chambers and Larry Hulsey of the Somervell County Commissioners Court continue to practice unconstitutional prayer at Somervell County Commissioner Court regular meetings. Here is the latest video from Feb 13 2017
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