On September 6, 2017, the U.S. District Court of Appeals for the Sixth Circuit issued a decision upholding legislative prayer in Bormuth v. County of Jackson, No. 15-1869. Some reading this may think, wait a second this case was decided this past February and changed our practices. This is true. However, the February 15, 2017 decision was issued by a three-judge panel. On February 27, 2017, the Sixth Circuit decided to rehear the case with all fifteen judges and vacated the previous decision. The underlying complaint alleged that the Jackson County Commission violated the Establishment Clause of the Constitution by asking persons to present to rise and assume a reverent position and a Commissioner offering a Christian prayer.
Bormuth argued that the courts should find the prayer in violation of the Establishment Clause in the Constitution because government officials were giving the prayer and the prayers were all Christian. It was his feeling that when a government official offers a public Christian prayer at a public meeting, it forces those present to worship Jesus Christ if they want to participate in government. He also believed that asking those present to rise and assume a reverent position was unduly coercive, forcing those present to submit to social pressure and worship a specified deity. The primary element of this case that differs from previously decided cases is that individual commissioners were offering the prayer, instead of guest preachers or outside individuals.
Most cases addressing whether government action has violated the Establishment Clause of the Constitution are subject to the Lemon test under which this case was first decided. Instead, the Sixth Circuit found that different standards apply to legislative prayer as the United States Supreme Court has found that legislative prayer “is deeply embedded in the history and tradition of this country.” Marsh v. Chambers, 463 U.S. 783 (1983). Instead, courts must focus on “whether the prayer practice fits within the tradition long followed in Congress and the state legislatures.” Town of Greece v. Galloway, 134 S.Ct. 1811, 1819 (2014). Each case overwhelmingly declines to analyze the content of the prayer refusing to subject prayer to a judicial determination of its sectarian nature. Instead the Town of Greece court stated that when the government invites prayer into the public arena it must allow the offeror to pray according to their beliefs.
What this means for our cities is that if our councils or commissions offer legislative prayer, there is no need to stress over the constitutionality. Instead, there are a few simple guidelines that may help. Is the prayer offered in a manner that allows the offeror to construct their own prayer? Is the council as a whole, mandating what religion or denomination must give the prayer? Is the prayer offered to focus the minds and hearts of the legislative members on their duties as public servants? Has any member of the legislative body commented that the prayer is offered with discriminatory intent? Is there any attempt to require all present to pray or any implication that if someone does not pray that they will not be taken seriously? These are some basic questions that can guide a local legislative body in constructing any prayer practice. As always, we recommend consulting with your city attorney in constructing this type of policy.
A link to the opinion can be found here:
If you have any questions please contact Morgain M. Sprague, KLC Managing Counsel for Member Legal Services at (859) 977-4212.
6th Circuit Upholds Constitutionality of Legislative Prayer Policy
Earlier this year, KLC filed an amicus brief in the case of Jones et al. v. Hamilton County Government, TN before the 6th Circuit Court of Appeals, supporting the constitutionality of invocations held at public meetings of local legislative bodies. The issue was whether a formal written invocation policy adopted by the Hamilton County Commission violated the First Amendment's Establishment Clause. On July 19, the 6th Circuit affirmed a lower court's ruling that a request for a preliminary injunction stopping the prayer practice should be denied. In so ruling, the 6th Circuit analyzed whether the written policy was constitutional "on its face" (i.e., looking at the plain language of the policy without consideration of how it was applied in practice), and also "as-applied" (how the policy was actually implemented).
In its analysis of the facial challenge, the Court reviewed the policy under the standards of the U.S. Supreme Court's only case addressing the constitutionality of legislative prayer, Marsh v. Chambers. Under Marsh, legislative prayer is permitted as long as there is no indication that the prayer opportunity has been exploited to advance one faith or belief over another. Because the Hamilton County policy took steps to be inclusive of all bonafide religious organizations, was not discriminatory, and did not evaluate the content of the invocations given by private citizens, the Court held the policy was tailored to comply with Marsh and was facially constitutional.
The Court next turned to whether the policy was constitutional as applied. Because the record contained only two prayers given after the policy was adopted, the Court held that this record was insufficient to make a determination of whether the implementation of the policy was constitutional. However, the Court noted that now almost a year has passed since the policy's adoption, and that the district court is now in a position to address the constitutionality of the policy as applied. This means the district court will again be faced with the constitutionality of the implemented policy.
In the meantime, the U.S. Supreme Court will soon revisit the issue of legislative prayer in its first case on the subject since Marsh, hopefully providing cities with guidance for crafting constitutionally sound prayer policies. For a copy of a policy similar to the one just upheld by the 6th Circuit, go to POLICY REGARDING OPENING INVOCATIONS.
Legislative Prayer in the Spotlight
Many cities in Kentucky open their public meetings with a short prayer or invocation. This practice was upheld as constitutional by the U.S. Supreme Court decades ago, but recently legislative prayer policies have taken center stage in a flurry of court cases across the nation. Both the U.S. Supreme Court and the 6th Circuit Court of Appeals will soon be revisiting the issue and hopefully offering updated legal guidance for cities in Kentucky. Stay tuned for updates once these cases are decided, and look for an article discussing legislative prayer in the upcoming issue of Kentucky City Magazine.
You can also link to a sample invocation policy here.
Please be sure to review the policy with your city attorney to ensure it meets the needs of your city. For more information, please contact the KLC Member Legal Services Department.