Peter Bormuth v. County of Jackson

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 17a0036p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETER CARL BORMUTH, ┐

Plaintiff-Appellant, │

│

> No. 15-1869

v. │

│

│

COUNTY OF JACKSON, │

Defendant-Appellee. │

┘

Appeal from the United States District Court for

the Eastern District of Michigan at Detroit.

No. 2:13-cv-13726—Marianne O. Battani, District Judge.

Argued: April 19, 2016

Decided and Filed: February 15, 2017

Before: MOORE, GRIFFIN, and STRANCH, Circuit Judges.

_________________

COUNSEL

ARGUED: Gregory M. Lipper, AMERICANS UNITED FOR SEPARATION OF CHURCH

AND STATE, Washington, D.C., for Amicus Curiae. Richard D. McNulty, COHL, STOKER &

TOSKEY, P.C., Lansing, Michigan, for Appellee. Peter Bormuth, Jackson, Michigan, pro se.

ON BRIEF: Gregory M. Lipper, Richard B. Katskee, AMERICANS UNITED FOR

SEPARATION OF CHURCH AND STATE, Washington, D.C., for Amicus Curiae. Richard D.

McNulty, COHL, STOKER & TOSKEY, P.C., Lansing, Michigan, for Appellee. Peter

Bormuth, Jackson, Michigan, pro se.

MOORE, J., delivered the opinion of the court in which STRANCH, J., joined.

GRIFFIN, J. (pp. 34–64), delivered a separate dissenting opinion.

No. 15-1869 Bormuth v. County of Jackson Page 2

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. The Board of Commissioners in Jackson

County, Michigan begins its monthly meetings with a prayer. Peter Bormuth, a resident of

Jackson County, filed suit against the County asserting that this prayer practice violates the First

Amendment’s Establishment Clause. The district court granted the County’s motion for

summary judgment and denied Bormuth’s motion for summary judgment, and Bormuth now

appeals. We hold that the district court erred in rejecting Bormuth’s argument that the prayer

practice coerced residents to support and participate in the exercise of religion. Accordingly, we

REVERSE the district court’s grant of summary judgment to the County and REMAND for

entry of summary judgment in Bormuth’s favor and for further proceedings consistent with this

opinion.

I. BACKGROUND

The facts in this case are not in dispute. The Jackson County Board of Commissioners

has nine members, including a Chairman, who are elected by the people of Jackson County. In

addition to overseeing other Jackson County bodies, the Board of Commissioners holds monthly

meetings to address matters of local concern. Each meeting begins with a call to order, after

which the Chairman directs those in attendance to “rise” and “assume a reverent position.” R. 10

(Am. Compl. ¶¶ 17, 19) (Page ID #64‒65). Then one of the Commissioners—all of whom are

Christian—delivers a prayer. Id. ¶¶ 19‒23 (Page ID #64‒66). Immediately after the prayer, the

Board of Commissioners invites residents, often children, to lead attendees in the Pledge of

Allegiance. Id. ¶ 17 (Page ID #64). The Board of Commissioners’ meetings are open to the

public and, for citizens who are unable to attend, are videotaped and posted on Jackson County’s

website. Id. ¶ 16 (Page ID #64).

Bormuth is a self-described Pagan and Animist. Id. ¶ 13 (Page ID #63). He believes in

the “attribution of conscious life to objects in and phenomena of nature” and the “existence of

spirits separable from bodies.” Id. (emphasis removed) (internal quotation marks omitted).

No. 15-1869 Bormuth v. County of Jackson Page 3

Bormuth worships the Sun and the Moon, as well as ancestral spirits, but his “primary deity is

the Mother Earth.” Id. He has written essays, poetry, and music on the subject. Id. Deeply

concerned with environmental issues, Bormuth started attending the Board of Commissioners’

monthly meetings because he believed that the County was releasing pollutants into a local river.

Id.

In July 2013, Bormuth attended the Board of Commissioners’ meeting to speak about

closing the Jackson County Resource Recovery Facility, the mass-burn waste combustor that he

believed was polluting the local river. Id. ¶ 25 (Page ID #66‒67). At the meeting, after the

Chairman said “all rise,” one of the Commissioners gave the following prayer:

Bow your heads with me please. Heavenly father we thank you for this day and

for this time that we have come together. Lord we ask that you would be with us

while we conduct the business of Jackson County. Lord help us to make good

decisions that will be best for generations to come. We ask that you would bless

our troops that protect us near and far, be with them and their families. Now Lord

we wanna [sic] give you all the thanks and all the praise for all that you do. Lord

I wanna [sic] remember bereaved families tonight too, that you would be with

them and take them through difficult times. We ask these things in your son

Jesus’s name. Amen.

Id. ¶ 23 (Page ID #65‒66). As a Pagan and an Animist, Bormuth was uncomfortable with the

Commissioner’s prayer. Id. ¶ 24 (Page ID #66). He felt like he was being forced to participate

in a religion to which he did not subscribe in order to bring a matter of concern to his local

government. Id.

Bormuth attended the Board of Commissioners’ August 2013 meeting as well. Id. ¶ 28

(Page ID #68). A Commissioner opened the meeting with the following prayer:

Please rise. Please bow our heads. Our heavenly father we thank you for

allowing us to gather here in your presence tonight. We ask that you watch over

us and keep your guiding hand on our shoulder as we deliberate tonight. Please

protect and watch over the men and women serving this great nation, whether at

home or abroad, as well as our police officers and firefighters. In this we pray, in

Jesus name, Amen.

No. 15-1869 Bormuth v. County of Jackson Page 4

Id. During the prayer, Bormuth was the only one in attendance who did not rise and bow his

head. Id. ¶ 29 (Page ID #68). Bormuth felt isolated, and he worried that the Board of

Commissioners would hold against him his decision to stay seated. Id.

On the agenda for the August 2013 meeting was whether Jackson County employees with

concealed-weapons permits could carry handguns at work. Id. ¶ 30 (Page ID #68‒69).

Following a discussion of Second Amendment rights, the Board of Commissioners voted in

favor of the County employees who wished to carry handguns at work. See id. During the

public-comment period, Bormuth stood and addressed the Board of Commissioners, calling

attention to what he believed was an equally important constitutional issue: First Amendment

rights. Id. ¶ 31 (Page ID #69). Bormuth told the Commissioners that he thought that the

monthly prayers violated the Establishment Clause and criticized the Commissioners for

selectively following the Bill of Rights. Id. While Bormuth was speaking, one of the

Commissioners “made faces expressing his disgust” and then turned his chair around, refusing to

look at Bormuth while he spoke. Id. The Commissioner’s reaction “confirm[ed] [Bormuth’s]

fear[]” that his refusal to join the prayers would prejudice the Board of Commissioners against

him. Id. Bormuth filed suit against the County ten days later, alleging that the prayer practice

violated the Establishment Clause. R. 1 (Compl.) (Page ID #1).

While Bormuth’s suit was pending before the district court, the Board of Commissioners

nominated residents to the County’s new Solid Waste Planning Committee. R. 10 (Am. Compl.

¶ 33) (Page ID #69). Although Bormuth had applied to serve on the Solid Waste Planning

Committee, and had three years of experience working on related issues, the Board of

Commissioners did not nominate him. Id. Bormuth surmised that this had something to do with

his suit against the County. Indeed, an article published shortly after Bormuth filed his federal

complaint revealed the Commissioners’ disapproval of the suit, quoting one Commissioner as

saying, “Bormuth ‘is attacking us and, from my perspective, my Lord and savior Jesus Christ,’”

and another Commissioner as remarking, “All this political correctness, after a while I get sick of

it.” R. 14 (Pl. First Mot. for Summ. J., Ex. C) (Page ID #149). Bormuth filed an amended

complaint addressing the Board of Commissioners’ decision not to nominate him to the Solid

Waste Planning Committee. R. 10 (Am. Compl. ¶ 33) (Page ID #69). He again alleged that the

No. 15-1869 Bormuth v. County of Jackson Page 5

County was violating the Establishment Clause and asked for declaratory and injunctive relief as

well as nominal damages. Id. ¶¶ 37, 44‒50 (Page ID #70‒71, 83‒84).

Bormuth moved for summary judgment a month later. R. 14 (Pl. First Mot. for Summ.

J.) (Page ID #107). In response, the County asked the district court to hold the case in abeyance

pending the Supreme Court’s decision in Town of Greece v. Galloway, 134 S. Ct. 1811 (2014).

R. 16 (Def. Resp. to Pl. First Mot. for Summ. J. at 18) (Page ID #173). The district court did not

hold the case in abeyance, but it did not rule on the motion for summary judgment either, and in

May 2014 the Supreme Court issued its decision in Town of Greece. The County filed a motion

for summary judgment in light of the Court’s opinion. R. 25 (Def. Mot. for Summ. J.) (Page ID

#244). The district court terminated Bormuth’s first motion for summary judgment and invited

him to file a second motion for summary judgment addressing Town of Greece, which he did.

R. 32 (Order Terminating Mot. at 1‒2) (Page ID #430‒31); R. 37 (Pl. Second Mot. for Summ. J.)

(Page ID #509).

While the parties were briefing their motions for summary judgment, they were also

embroiled in two discovery disputes. The first dispute involved Bormuth’s efforts to take

depositions. Bormuth sent the County notices of his intent to depose the Commissioners, R. 24-2

(Notices of Deps.) (Page ID #226), in order to obtain “information relating to [Bormuth’s]

activities regarding the Jackson County Resource Recovery Facility,” as well as information on

the Board of Commissioners’ practice of opening meetings with prayer and on its use of children

to lead the Pledge of Allegiance following the prayer, R. 24-3 (Pl. Corrected Rule 26(a)(1)

Disclosures at 1) (Page ID #236). The County filed a motion to quash, arguing that it had

already provided Bormuth with all the information that it had on its practice of opening meetings

with prayer and on its use of children to lead the Pledge of Allegiance, and that any information

it had on Bormuth’s activities regarding the Jackson County Resource Recovery Facility was

immaterial. R. 24 (Mot. to Quash at 3‒7) (Page ID #213‒17). In response, Bormuth stated that

he also wanted to uncover the Commissioners’ motives in delivering the prayers. R. 26 (Resp. to

Mot. to Quash at 7) (Page ID #296). The County replied that the Commissioners’ motives were

also immaterial. R. 28 (Reply re: Mot. to Quash at 1) (Page ID #306).

No. 15-1869 Bormuth v. County of Jackson Page 6

The second dispute involved Bormuth’s efforts to supplement the record. Bormuth

sought to supplement the record with the text of a Commissioner’s October 2014 prayer, R. 42

(Pl. First Mot. to Suppl. Record at 1) (Page ID #790), and with a letter he received from the

Board of Commissioners denying him appointment to the Board of Public Works, R. 52 (Pl.

Second Mot. to Suppl. Record at 1) (Page ID #932). The County objected to the first motion to

supplement the record because the October 2014 prayer was similar to the prayers that Bormuth

had included in his amended complaint. R. 43 (Resp. to Pl. First Mot. to Suppl. Record at 1‒2)

(Page ID #801‒02). The County did not respond to the second motion to supplement the record,

which was filed just days before the Magistrate Judge issued a Report and Recommendation.

The Magistrate Judge considered the County’s motion to quash depositions first.

Although not persuaded by the County’s arguments that the information Bormuth sought was

immaterial, the Magistrate Judge granted the motion “because both sides ha[d] fully briefed their

respective summary judgment motions and responses, and plaintiff ha[d] not indicated the need

for any additional discovery.” R. 46 (Order Granting Mot. to Quash at 6) (Page ID #820). The

Magistrate Judge addressed the parties’ motions for summary judgment in another order,

recommending that the district court deny the County’s motion for summary judgment, grant

Bormuth’s motion for summary judgment because “the legislative prayer practice of the Jackson

County Board of Commissioners violates the Establishment Clause,” and enjoin the Board of

Commissioners from “utilizing its current prayer practice.” R. 50 (R. & R. at 39) (Page ID

#914). Finally, the Magistrate Judge denied without prejudice Bormuth’s motions to supplement

the record because the Magistrate Judge had already recommended that the district court grant

summary judgment in Bormuth’s favor. R. 54 (Order Denying Mots. to Suppl. Record at 1)

(Page ID #998).

The district court rejected the Magistrate Judge’s recommendations. Beginning with the

motion to quash depositions, the district court agreed with the County that the information

Bormuth sought in deposing the Commissioners—“information relating to [Bormuth’s] activities

regarding the Jackson County Resource Recovery Facility,” R. 24-3 (Pl. Corrected Rule 26(a)(1)

Disclosures at 1) (Page ID #236)—was not germane to the dispute, R. 59 (Dist. Ct. Order

Granting Mot. to Quash at 2‒3) (Page ID #1045‒46). Confusing the Jackson County Resource

No. 15-1869 Bormuth v. County of Jackson Page 7

Recovery Facility with the Solid Waste Planning Committee (or possibly with the Board of

Public Works), the district court explained that because Bormuth “ha[d] not brought an

employment discrimination claim,” “information regarding the Jackson County Resource

Recovery Facility’s failure to hire him . . . is not relevant.” Id. The district court further stated

that although Bormuth also sought information on the Commissioners’ motives in giving the

prayers, “motive is not a relevant factor.” Id. at 3 (Page ID #1046). The district court then

granted Bormuth’s first motion to supplement the record with the Commissioner’s October 2014

prayer but denied Bormuth’s second motion to supplement the record with the letter that he

received from the Board of Commissioners denying him appointment to the Board of Public

Works. R. 60 (Dist. Ct. Order Re: Mots. to Suppl. Record at 2‒3) (Page ID #1048‒49).

Conflating Bormuth’s second motion to supplement the record with his efforts to depose the

Commissioners, the district court described the second motion to supplement the record as

seeking to introduce “[Bormuth’s] application to a position on the Jackson County Resource

Recovery Facility,” concluding that, “[b]ecause [Bormuth’s] complaint makes no employment

discrimination claim, instead advancing as the sole cause of action an Establishment Clause

violation, his affidavit describing the Board’s failure to hire him is irrelevant.” Id. at 3 (Page ID

#1049) (emphasis removed).

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

No. 15-1869 Bormuth v. County of Jackson Page 8

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). As for the

Commissioners’ treatment of Bormuth, the district court stated that, though “evidence of

disrespect,” the Commissioners’ treatment by turning their backs to him “does not demonstrate

that the Board was prejudiced against him because he declined to participate in the prayer—

rather, their behavior is likely an unfortunate expression of their own personal sense of affront

elicited by his sentiments.” Id. at 15 (Page ID #1065).

Bormuth timely appeals the district court’s order granting the motion to quash, its order

denying the second motion to supplement the record, and its order granting the County’s motion

for summary judgment and denying Bormuth’s motion for summary judgment. R. 65 (Notice of

Appeal) (Page ID #1072).

II. ANALYSIS

A. Whether the District Court Abused its Discretion by Granting the Motion to

Quash and Denying the Motion to Supplement the Record

This court reviews for an abuse of discretion both a district court’s ruling on a motion to

quash and its ruling on a motion to supplement the record. Guy v. Lexington-Fayette Urban Cty.

Gov’t, 624 F. App’x 922, 928 (6th Cir. 2015) (motion to quash); see Duha v. Agrium, Inc.,

448 F.3d 867, 882 (6th Cir. 2006) (motion to supplement the record). “An abuse of discretion

occurs if the district court relies on clearly erroneous findings of fact, applies the wrong legal

standard, misapplies the correct legal standard when reaching a conclusion, or makes a clear

error of judgment.” Louzon v. Ford Motor Co., 718 F.3d 556, 560 (6th Cir. 2013) (internal

quotation marks omitted).

In granting the County’s motion to quash the depositions of the Commissioners, the

district court concluded that, because Bormuth “ha[d] not brought an employment discrimination

claim,” “information regarding the Jackson County Resource Recovery Facility’s failure to hire

No. 15-1869 Bormuth v. County of Jackson Page 9

him . . . is not relevant.” R. 59 (Dist. Ct. Order Granting Mot. to Quash at 2‒3) (Page ID #1045‒

46). This was a misapprehension of the facts. Bormuth had not sought information regarding

the Jackson County Resource Recovery Facility’s failure to hire him. He had sought information

about his efforts to close it: the Jackson County Resource Recovery Facility was the mass-burn

waste combustor that Bormuth believed was polluting the local river. R. 24-3 (Pl. Corrected

Rule 26(a)(1) Disclosures at 1) (Page ID #236). The district court also concluded that, to the

extent Bormuth sought information on the Commissioners’ motives in giving the prayers,

“motive is not a relevant factor.” R. 59 (Dist. Ct. Order Granting Mot. to Quash at 3) (Page ID

#1046). This was a misapplication of the law. The Commissioners’ purpose in delivering the

prayers is highly relevant, because legislative prayer that is intended to proselytize may violate

the Establishment Clause by coercing citizens to support and participate in the exercise of

religion. Town of Greece, 134 S. Ct. at 1825‒26 (controlling opinion). The district court’s

order, therefore, was an abuse of discretion.

In denying Bormuth’s second motion to supplement the record—which asked the district

court to consider the letter that Bormuth received from the Board of Commissioners denying him

appointment to the Board of Public Works—the district court also misapprehended the facts and

misapplied the law. The district court characterized Bormuth’s second motion to supplement the

record as seeking to introduce “his application to a position on the Jackson County Resource

Recovery Facility.” R. 60 (Dist. Ct. Order Re: Mots. to Suppl. Record at 3) (Page ID #1049).

But as explained above, Bormuth never applied for a position at the Jackson County Resource

Recovery Facility; he attempted to close it. His second motion to supplement the record

concerned his application to the Board of Public Works. R. 52 (Pl. Second Mot. to Suppl.

Record at 1) (Page ID #932). The district court then concluded that “[b]ecause [Bormuth’s]

complaint makes no employment discrimination claim, instead advancing as the sole cause of

action an Establishment Clause violation, [the letter and] affidavit describing the Board’s failure

to hire him [are] irrelevant.” R. 60 (Dist. Ct. Order Re: Mots. to Suppl. Record at 3) (Page ID

#1049) (emphasis removed). But the letter and affidavit are relevant—they speak to whether the

Board of Commissioners is allocating benefits and burdens based on citizens’ participation in the

prayers, which is a critical part of the analysis of legislative-prayer claims. See Town of Greece,

134 S. Ct. at 1826 (controlling opinion). Accordingly, the district court’s order denying the

No. 15-1869 Bormuth v. County of Jackson Page 10

motion to supplement the record was also an abuse of discretion. However, because we find that

Bormuth is entitled to summary judgment as a matter of law on the record that was before the

district court, both of the district court’s errors are harmless.

B. Whether the Board of Commissioners’ Practice Violates the Establishment Clause

1. Framework

Before considering the merits of Bormuth’s arguments, we must first set forth the

framework within which to analyze his claim. Unfortunately, our sources are limited. There are

only two Supreme Court cases that have considered the constitutionality of legislative prayer—

Marsh v. Chambers and Town of Greece—and neither one provides much instruction beyond

establishing that legislative-prayer claims occupy a unique place in First Amendment

jurisprudence.

Marsh, the first Supreme Court case to consider a legislative-prayer claim, bypassed the

Court’s previously constructed tests for Establishment Clause violations, reasoning that because

“the practice of legislative prayer has coexisted with the principles of disestablishment and

religious freedom,” from “colonial times through the founding of the Republic and ever since,”

those tests did not apply. 463 U.S. 783, 786 (1983). The Court held that a new formal test was

unnecessary. As the Court explained, “[t]o invoke Divine guidance on a public body entrusted

with making the laws is not, in these circumstances, an ‘establishment’ of religion or a step

toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the

people of this country.” Id. at 792. Although the Court still asked whether any features of the

practice before it violated the Establishment Clause, it evaluated the parties’ arguments “against

the historical background” of legislative prayer. Id. at 792‒93.

Town of Greece confirmed that “Marsh stands for the proposition that it is not necessary

to define the precise boundary of the Establishment Clause where history shows that the specific

practice is permitted.” 134 S. Ct. at 1819. However, Town of Greece cautioned that “Marsh

must not be understood as permitting a practice that would amount to a constitutional violation if

not for its historical foundation.” Id. “The case teaches instead that the Establishment Clause

must be interpreted by reference to historical practices and understandings.” Id. (internal

No. 15-1869 Bormuth v. County of Jackson Page 11

quotation marks omitted). Following the framework set forth in Marsh, the Court in Town of

Greece considered whether the legislative prayer before it “fit[] within the tradition long

followed in Congress and the state legislatures.” Id. Examining the prayer “against the

backdrop of historical practice,” Town of Greece asked whether the prayer violated the

Establishment Clause by either being sectarian, id. at 1820, or coercive, id. at 1825 (controlling

opinion). The Court found that while sectarian prayers would not necessarily violate the

Establishment Clause, coercive prayer practices would. Id. at 1821, 1825.

Thus, we must determine whether the Board of Commissioners’ practice is similar to the

practices upheld in Marsh and Town of Greece or if there are critical differences that bring the

Board of Commissioners’ practice outside the ambit of historically tolerated legislative prayer.

Legislative prayer may fall outside the bounds of the Establishment Clause if it strays too far

from its traditional purpose and effect—respectful solemnification—or if it is unconstitutionally

coercive. Id. at 1827 (courts should determine whether legislative prayers “comport with the

tradition of solemn, respectful prayer approved in Marsh, or whether coercion is a real and

substantial likelihood”). Town of Greece provided several indicators of how a legislative prayer

practice might stray from this traditional purpose, including patterns of proselytization,

denigration, discrimination, or censorship of religious speech. Id. at 1821–24. Alternatively, a

legislative prayer practice might be unconstitutionally coercived “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.

2. A Closer Look at Marsh and Town of Greece

Because we must compare the Board of Commissioners’ practice to the practices upheld

in Marsh and Town of Greece in order to determine whether the Board of Commissioners’

practice also falls within the tradition of legislative prayer, a closer look at both cases is

necessary.

No. 15-1869 Bormuth v. County of Jackson Page 12

a. Marsh

Marsh concerned the Nebraska Legislature’s practice of opening its sessions with a

prayer delivered by a chaplain. 463 U.S. at 784. Although the Nebraska Legislature could

choose a new chaplain biennially, the same chaplain, a Presbyterian minister, had been giving

the prayers for sixteen years. Id. at 784‒85. He was also paid with public funds. Id. The

Supreme Court’s opinion provided little additional detail on the Nebraska Legislature’s practice,

instead observing that “[t]he opening of sessions of legislative and other deliberative public

bodies with prayer is deeply embedded in the history and tradition of this country.” Id. at 786.

Indeed, Nebraska had adopted the practice before it had even achieved statehood. Id. at 789‒90.

The Supreme Court concluded that the Nebraska practice fell within the scope of historically

tolerated legislative prayer and that no features of the practice—including that the chaplain was

paid with public funds—violated the Establishment Clause. Id. at 792‒95.

b. Town of Greece

Town of Greece provides more points of comparison. In 1999, the Town of Greece

started opening its monthly town board meetings with prayers delivered by local clergy. 134 S.

Ct. at 1816. Unlike in Marsh, the clergy were volunteers whom the town typically contacted

through their local congregations. Id. Although the town never “excluded or denied an

opportunity to a would-be prayer giver,” the town recruited exclusively Christian clergy for eight

years. Id. Susan Galloway and Linda Stephens, residents of the Town of Greece, attended the

monthly board meetings and objected to the prayers’ Christian content. Id. at 1817. In response,

the town invited a Jewish layman and the chairman of the local Baha’i temple to offer

invocations. Id. The town also accepted a request to deliver a prayer from a Wiccan priestess,

who had read about the controversy in the news. Id.

Galloway and Stephens filed a complaint alleging that the town’s practice violated the

Establishment Clause “by preferring Christians over other prayer givers and by sponsoring

sectarian prayers, such as those given ‘in Jesus’ name.’” Id. (quoting Galloway v. Town of

Greece, 732 F. Supp. 2d 195, 203 (W.D.N.Y. 2010)). They did not, however, seek to enjoin the

town’s practice in its entirety, “but rather requested an injunction that would limit the town to

No. 15-1869 Bormuth v. County of Jackson Page 13

‘inclusive and ecumenical’ prayers that referred only to a ‘generic God’ and would not associate

the government with any one faith or belief.” Id. (quoting Galloway, 732 F. Supp. 2d at 210,

241). Galloway and Stephens believed “that the setting and conduct of the town board meetings

create[d] social pressures that force[d] nonadherents to remain in the room or even feign

participation in order to avoid offending the representatives who sponsor[ed] the prayer and . . .

vote[d] on matters citizens [brought] before the board.” Id. at 1820. They further argued that

“[t]he sectarian content of the prayers compound[ed] the subtle coercive pressures . . . because

the nonbeliever who might tolerate ecumenical prayer [was] forced to do the same for prayer that

might be inimical to his or her beliefs.” Id. The district court found no Establishment Clause

violation, Galloway, 732 F. Supp. 2d at 243, and the Second Circuit reversed, Galloway v. Town

of Greece, 681 F.3d 20, 34 (2d Cir. 2012).

The Supreme Court reversed the Second Circuit in an opinion written by Justice

Kennedy. The first half of Justice Kennedy’s opinion, which garnered a majority of the Court,

held that Galloway and Stephens’s insistence on inclusive and ecumenical prayer was

inconsistent with Marsh. Town of Greece, 134 S. Ct. at 1820‒24.    The Court explained that

Marsh had held that the use of prayer to open legislative sessions was constitutional not because

the prayer was nonsectarian, but because “prayer in this limited context could ‘coexist with the

principles of disestablishment and religious freedom.’”1 Id. at 1820 (alteration omitted) (quoting

Marsh, 463 U.S. at 786). Indeed, the Court noted that the prayers given by one of the Senate’s

first chaplains were sectarian and warned that “[t]he decidedly Christian nature of these prayers

must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today.”

Id.

The Court also expressed concern that Galloway and Stephens’s proposed cure would be

worse than the disease:

To hold that invocations must be nonsectarian would force the legislatures

that sponsor prayers and the courts that are asked to decide these cases to act as

supervisors and censors of religious speech, a rule that would involve government

in religious matters to a far greater degree than is the case under the town’s

1

The Court also repudiated dicta in County of Allegheny v. American Civil Liberties Union Greater

Pittsburgh Chapter characterizing Marsh as proscribing sectarian prayer. Town of Greece, 134 S. Ct. at 1821‒22.

No. 15-1869 Bormuth v. County of Jackson Page 14

current practice of neither editing or approving prayers in advance nor criticizing

their content after the fact.

Id. at 1822. The Court was quick to note, however, that there were still constraints on the

content of legislative prayer. Id. at 1823. These constraints came from the prayer’s purpose,

which is to solemnize the legislative session. Id. If the prayer’s content strayed from this

purpose, the prayer would no longer be consistent with the First Amendment. But “[a]bsent a

pattern of prayers that over time denigrate, proselytize, or betray an impermissible government

purpose, a challenge based solely on the content of a prayer [would] not likely establish a

constitutional violation.”2 Id. at 1824.

The second half of Justice Kennedy’s opinion, which was joined by only two other

Justices, considered Galloway and Stephens’s argument that the town’s practice was coercive—

specifically, that it pressured members of the public to participate in the prayers in order to

appease town board members. Id. at 1824‒28 (controlling opinion). Justice Kennedy’s opinion

agreed that this kind of pressure was problematic, stating that “[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 v. Am. Civil Liberties Union

Greater Pittsburgh Chapter, 492 U.S. 573, 659 (1989) (Kennedy, J., concurring in judgment in

part and dissenting in part)). However, the opinion stated that there was no evidence of coercion

in the record. The opinion explained that the inquiry into whether the government has engaged

in such coercion is “a fact-sensitive one that considers both the setting in which the prayer arises

and the audience to whom it is directed.” Id. By “offering a brief, solemn, and respectful prayer

to open its monthly meetings,” the Town of Greece had not “compelled its citizens to engage in a

religious observance.” Id. “[L]egislative prayer,” the opinion explained, “has become part of

our heritage and tradition,” and “[i]t is presumed that the reasonable observer is acquainted with

this tradition and understands that its purposes are to lend gravity to public proceedings and to

acknowledge the place religion holds in the lives of many private citizens, not to afford

government an opportunity to proselytize.” Id. The opinion determined that there was nothing

2

Because this is one of the Court’s more concrete statements, it is tempting to turn it into a test and apply it

to the County’s prayer practice, as the County endeavors to do in its brief. See Appellee Br. at 23, 25. The Court’s

statement, however, must be viewed through the lens of Galloway and Stephens’s insistence that legislative prayers

be ecumenical. In other words, the statement is limited to challenges based on content alone.

No. 15-1869 Bormuth v. County of Jackson Page 15

in the record about the setting of the prayer that undermined this presumption. Id. As for the

principal audience to whom the prayer was directed, the opinion explained that it is presumed

that the principal audience is the lawmakers themselves, because legislative prayer is “an internal

act” in which government officials invoke the divine for their own benefit rather than to promote

religion to the public. Id. (quoting Chambers v. Marsh, 504 F. Supp. 585, 588 (D. Neb. 1980)).

Again, the opinion determined that there was nothing in the record about the principal audience

that undermined this presumption. Id. at 1825‒26.

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.

Before we determine whether the Board of Commissioners’ practice falls within the

bounds of historically tolerated legislative prayer, we must take a short detour. As noted above,

the Court in Town of Greece was divided: although four Justices signed on to the first half of

Justice Kennedy’s opinion, only two Justices signed on to the second half. Thus, while Justice

Kennedy’s analysis of the respondents’ content-based argument garnered a majority of the Court,

Justice Kennedy’s analysis of the respondents’ coercion argument did not. Complicating

matters, Justice Thomas filed an opinion concurring in part and concurring in the judgment,

which Justice Scalia joined, advancing a different theory as to the kind of coercion required to

violate the First Amendment’s Establishment Clause.

“When a fragmented Court decides a case and no single rationale explaining the result

enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken

by those Members who concurred in the judgments on the narrowest grounds.’” Marks v. United

States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)

No. 15-1869 Bormuth v. County of Jackson Page 16

(opinion of Stewart, Powell, and Stevens, JJ.)). Thus, we must determine whether Justice

Kennedy’s or Justice Thomas’s conception of coercion constitutes the narrowest grounds.

Although the Supreme Court has applied the “narrowest grounds” rule a number of times,

most extensively in Marks v. United States and Gregg v. Georgia, it has never actually defined

the term. Accordingly, we undertook the task in United States v. Cundiff, which applied the

“narrowest grounds” rule to Rapanos v. United States, 547 U.S. 715 (2006), in order to answer a

jurisdictional question. Cundiff, 555 F.3d 200, 208‒09 (6th Cir. 2009). After a detailed

examination of Marks and Gregg, Cundiff held,

As these cases indicate—and contrary to assertions by the Cundiffs and

their amici—Marks does not imply that the “narrowest” Rapanos opinion is

whichever one restricts jurisdiction the most. But it also makes little sense for the

“narrowest” opinion to be the one that restricts jurisdiction the least, as the

government’s amici allege; the ability to glean what substantive value judgments

are buried within concurring, plurality, and single-Justice opinions would require

something like divination to be performed accurately. Instead, “narrowest”

opinion refers to the one which relies on the “least” doctrinally “far-reaching-

common ground” among the Justices in the majority: it is the concurring opinion

that offers the least change to the law.

Id. at 209 (internal citation omitted). An examination of Gregg and Marks confirms our

understanding of the rule.3

Gregg interpreted the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238

(1972), where a majority of the Court held that Georgia’s death penalty was unconstitutional.

See Gregg, 428 U.S. at 168‒69. The Furman Court, however, could not agree on a rationale.

The five Justices in the majority all filed separate concurring opinions: Justices Douglas,

Stewart, and White concluded that the death penalty was unconstitutional as applied; Justices

Brennan and Marshall concluded it was per se unconstitutional. Gregg held that “[s]ince five

Justices wrote separately in support of the judgments in Furman, the holding of the Court may be

3

In Cundiff, we acknowledged that the “narrowest grounds” rule is only “workable” where “one opinion

can be meaningfully regarded as ‘narrower’ than another.” Cundiff, 555 F.3d at 209 (quoting King v. Palmer,

950 F.2d 771, 781 (D.C. Cir. 1991) (en banc)). Here, the rule can be applied without too much difficulty.

No. 15-1869 Bormuth v. County of Jackson Page 17

viewed as that position taken by those Members who concurred in the judgments on the

narrowest grounds—Mr. Justice Stewart and Mr. Justice White.”4 Id. at 169 n.15.

Marks interpreted Memoirs v. Massachusetts, 383 U.S. 413 (1966), a similarly fractured

opinion which reversed a state court’s declaration that a book was obscene. Marks, 430 U.S. at

193. In order to determine which Memoirs opinion was based on the narrowest grounds, Marks

broke Memoirs down into its constituent parts. Id. at 193‒94. In Memoirs, Justice Brennan,

joined by Chief Justice Warren and Justice Fortas, wrote the opinion reversing the state court,

Justices Black and Stewart concurred in the reversal for reasons stated in prior dissenting

opinions, and Justice Douglas wrote a separate opinion concurring in the judgment. Marks

concluded that Justice Brennan’s plurality opinion represented the narrowest grounds. Id.

Before Memoirs, the controlling opinion on obscenity defined “obscene material” as “material

which deals with sex in a manner appealing to prurient interest.” Roth v. United States, 354 U.S.

476, 487 (1957). Justice Brennan’s plurality opinion set forth a three-part test which

incorporated this definition of obscenity. Marks, 430 U.S. at 193‒94. The other Justices

concurred based on their belief either that only hard-core pornography can be suppressed, or that

the First Amendment provides an absolute shield against restrictions of obscene material. Id.

Justice Brennan’s plurality opinion, therefore, “offer[ed] the least change to the law.” Cundiff,

555 F.3d at 209.

Reading Marks and Gregg with Cundiff, we are left with one question: which analysis of

coercion in Town of Greece—Justice Kennedy’s or Justice Thomas’s—“relies on the least

doctrinally far-reaching-common ground among the Justices in the majority?” Cundiff, 555 F.3d

at 209 (internal quotation marks omitted). The answer is Justice Kennedy’s analysis. Although

Justice Thomas’s conception of coercion is more restrictive, Justice Kennedy’s conception of

coercion “offers the least change to the law.” Id.

4

Although Justice Douglas also concluded that the death penalty was unconstitutional as applied, he

described the discretionary statutes at issue as “pregnant with discrimination.” Furman, 408 U.S. at 256‒57

(Douglas, J., concurring). Justice Stewart’s discussion of race was more measured: “My concurring Brothers have

demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the

constitutionally impermissible basis of race. But racial discrimination has not been proved, and I put it to one side.”

Id. at 310 (Stewart, J., concurring) (footnotes omitted) (internal citations omitted). Justice White did not address

race in his opinion. Id. at 310‒14 (White, J., concurring).

No. 15-1869 Bormuth v. County of Jackson Page 18

As discussed above, Justice Kennedy’s opinion in Town of Greece states that “[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,’” a quote the opinion draws from County of Allegheny

v. American Civil Liberties Union Greater Pittsburgh Chapter. Town of Greece, 134 S. Ct. at

1825 (controlling opinion) (quoting Cty. of Allegheny, 492 U.S. at 659 (Kennedy, J., concurring

in judgment in part and dissenting in part)). Justice Kennedy’s opinion further supports this

statement with a citation to the plurality opinion in Van Orden v. Perry, where the Supreme

Court held that “institutions must not press religious observances upon their citizens.” Id.

(quoting Van Orden, 545 U.S. 677, 683 (2005)). After finding no coercion in the record, Justice

Kennedy’s opinion observes 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. Thus, Justice Kennedy’s opinion leaves the door open to coercion-

based challenges to legislative prayer based on context and setting.

Justice Thomas’s opinion concurring in part and concurring in the judgment states that

“the municipal prayers at issue in this case bear no resemblance to the coercive state

establishments that existed at the founding.” Id. at 1837. Justice Thomas’s opinion continues:

“The coercion that was a hallmark of historical establishments of religion was coercion of

religious orthodoxy and of financial support by force of law and threat of penalty.” Id.

(emphasis in original) (quoting Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J.,

dissenting)). The remainder of Justice Thomas’s opinion cites only Justice Thomas’s previous

concurrences from cases where there were controlling majority or plurality opinions. Id. at

1837‒38. Whatever the merits of Justice Thomas’s arguments, he does not cite any controlling

law to support them. Indeed, in his opinion concurring in the judgment in Elk Grove Unified

School District v. Newdow, Justice Thomas criticizes the Supreme Court’s concern with “subtle

coercive pressure” in the Establishment Clause context, acknowledging that the Court has not

accepted his conception of the kind of coercion required to violate the Establishment Clause.

542 U.S. 1, 45‒46 (2004) (Thomas, J., concurring in the judgment) (quoting Lee, 505 U.S. at

592).

No. 15-1869 Bormuth v. County of Jackson Page 19

Admittedly, the precise role of coercion in an Establishment Clause inquiry is unclear,

especially within the context of legislative prayer. In that sense, both Justice Kennedy’s and

Justice Thomas’s opinions involve at least some departure from the state of the law as it existed

before Town of Greece. However, given that there is controlling precedent supporting Justice

Kennedy’s opinion and no controlling precedent supporting Justice Thomas’s concurrence,

Justice Thomas’s concurrence is neither the “the least doctrinally far-reaching-common ground

among the Justices in the majority,” nor the “opinion that offers the least change to the law.”

Cundiff, 555 F.3d at 209 (internal quotation marks omitted). What is more, when viewed within

the context of the majority’s holding, Justice Kennedy’s opinion clearly represents the narrowest

grounds. The majority’s holding was that there was no coercion. According to Justice Kennedy,

this was because there was no coercion in the record. According to Justice Thomas, this was

because there could never be coercion absent formal legal compulsion. Within the context of a

ruling against the respondents, therefore, the narrower opinion is Justice Kennedy’s, not Justice

Thomas’s. Accordingly, Justice Kennedy’s conception of coercion is the holding of the Court

under binding Sixth Circuit precedent.

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

No. 15-1869 Bormuth v. County of Jackson Page 20

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

5

The dissent says that it does not matter that the prayers are literally government speech because “[a] public

official need not be the one giving a prayer in order for the Establishment Clause to apply.” Dissent at 49.

In support of that statement, the dissent cites Pleasant Grove City v. Summum, 555 U.S. 460 (2009). Pleasant Grove

City is about the Free Speech Clause, not the Establishment Clause; in fact, it specifically distinguishes the

Establishment Clause. See id. at 467–68. More importantly, nothing in Pleasant Grove City, nor in any cases about

the Establishment Clause, changes the fact that the identity of the prayer giver is a relevant consideration in the

highly “fact-sensitive” Establishment Clause inquiry. See Town of Greece, 134 S. Ct. at 1825.

6

The dissent argues that whether the Commissioners endorse a particular religion is irrelevant because the

Lemon test does not apply to this case. Dissent at 47. While we agree that we do not need to apply the Lemon test

in this case, we disagree that whether the Commissioners’ prayer practice endorses one religion over others is

entirely irrelevant. Town of Greece indicates that “Marsh must not be understood as permitting a practice that

would amount to a constitutional violation if not for its historical foundation” and that “[i]f the course and practice

over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach

conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion

and to unite lawmakers in their common effort.” 134 S. Ct. at 1819, 1823. Endorsing a specific religion can be part

of a pattern of denigrating religious minorities or preaching conversion.

No. 15-1869 Bormuth v. County of Jackson Page 21

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.

No. 15-1869 Bormuth v. County of Jackson Page 22

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

7

This video, like the other videos we cite in our opinion, was part of the record before the district court.

See R. 10 (Am. Compl. ¶ 16) (Page ID #64) (informing the district court that the County records the Board of

Commissioners’ meetings and posts the videos on the County’s website); R. 29 (Pl. Resp. to Def. Mot. for Summ. J.

at 11‒16) (Page ID #328‒33) (reciting what happened at several Board of Commissioners’ meetings, videos of

which the County posts online); R. 37-1 (Pl. Mot. for Summ. J., Ex. J) (Page ID #611–614 (including transcripts of

three Board of Commissioners’ meetings and stating that the County posts videos of Board of Commissioners’

meetings online). Indeed, as counsel for the County stated at oral argument, the “official record” includes all of the

videos of the Board of Commissioners’ meetings. Despite the fact that Bormuth repeatedly references the videos

and recites what happened at Board of Commissioners’ meetings in his pleadings, the dissent contends that these

videos are not part of the record. For that proposition, it cites United States v. Crumpton, 824 F.3d 593 (6th Cir.

2016). In Crumpton, the defendant “refer[red] to a video of the execution of the search warrant[.] . . . The video was

not made part of the district court’s electronic record, however, nor was it forwarded to this court for purposes of

appeal. Because the video has not been made part of the record before us, we cannot evaluate its effect on the case.”

Id. at 614 n.6 (emphasis added). There is an obvious distinction between Crumpton and this case: In Crumpton, we

determined that we could not evaluate the video’s effect because we did not have access to the video. That

determination is entirely distinct from the one we are making here, which is that the parties have made the videos,

which we can access, part of the record by repeatedly referencing them in pleadings.

8

The dissent cautions against “examining the minds of individual legislators as it relates to legislative

intent” and advocates “heed[ing] the Supreme Court’s admonition that ‘[i]nquiries into [legislative] motives or

purposes are a hazardous matter.’” Dissent at 50. Presumably the dissent is not arguing that legislative purpose and

motive are irrelevant. “Examination of purpose is a staple of statutory interpretation that makes up the daily fare of

every appellate court in the country, and governmental purpose is a key element of a good deal of constitutional

doctrine.” McCreary Cty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 861 (2005) (citation omitted). More

likely, the dissent is arguing against relying too much on mere inferences about the motives of individual legislators.

Here, we need not rely on inferences because there are clear statements expressing the desire to control the content

of prayers. Moreover, McCreary, which the dissent relies on for support, indicates that “scrutinizing purpose does

make practical sense, as in Establishment Clause analysis, where an understanding of official objective emerges

from readily discoverable fact, without any judicial psychoanalysis of a drafter’s heart of hearts.” 545 U.S. at 862.

No psychoanalysis is necessary in this case because there are discoverable facts in the form of clear statements and

actions that reveal the Commissioners’ motives.

9

The dissent argues that, “Noticeably absent from the majority’s opinion is any acknowledgement that

Jackson County’s invocation practice is facially neutral regarding religion” even though “[n]either other

No. 15-1869 Bormuth v. County of Jackson Page 23

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.

Bormuth has waived this argument, and Amicus cannot make it for him. “While an

amicus may offer assistance in resolving issues properly before a court, it may not raise

additional issues or arguments not raised by the parties.” Self-Ins. Inst. of Am., Inc. v. Snyder,

827 F.3d 549, 560 (6th Cir. 2016) (alteration omitted) (quoting Cellnet Commc’ns, Inc. v. FCC,

149 F.3d 429, 443 (6th Cir. 1998)), cert. denied, --- U.S. ---, 2017 WL 69264 (U.S. Jan. 9, 2017)

(No. 16-593). Although Bormuth argued both that the Board of Commissioners’ practice “has

the effect of proselytizing . . . and advancing the Christian religion,” R. 10 (Am. Compl. at 19)

(Page ID #78), and that the prayers were “directed at the audience,” R. 29 (Pl. Resp. to Def. Mot.

Commissioners, nor the Commission as a whole, review or approve the content of the invocations.” Dissent at 46.

This acknowledgement is absent from our opinion because, as the affirmative decision to exclude other prayer givers

makes plain, Jackson County’s invocation practice purposefully discriminated against non-Christian prayer givers.

No. 15-1869 Bormuth v. County of Jackson Page 24

for Summ. J. at 14) (Page ID #331), he did not explicitly argue that the Commissioners’ purpose

was to promote religion to the public. And although we are mindful of our rule that pro se filings

should be construed liberally, Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005), we

decline to ground our analysis in Amicus’s argument.

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

No. 15-1869 Bormuth v. County of Jackson Page 25

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.

No. 15-1869 Bormuth v. County of Jackson Page 26

Second, the Board of Commissioners has singled out Bormuth for opprobrium. During a

public meeting, a Commissioner stated that Bormuth’s lawsuit was an “attack on Christianity and

Jesus Christ, period.” County of Jackson, Personnel & Finance Committee November 12, 2013

Jackson County, MI, YouTube (Dec. 19, 2013), http://tinyurl.com/2013nov12 (32:50‒32:59).

Another Commissioner characterized Bormuth’s lawsuit as “political correctness nonsense” and

complained that he has “had political correctness jammed down [his] throat.” Id. at 43:00‒

43:18. That Commissioner continued:

The Federalist Papers, if you read them, tell[] me that it is your duty to disobey an

illegal law. And it has taken some nitwit two hundred-and-some years to come up

with an angle like this to try to deprive me or other people, of my faith, of my

rights.

Id. at 43:22‒43:41 (emphasis added). In disparaging Bormuth, the Board of Commissioners’

message is clear: residents who refuse to participate in the prayers are disfavored. Indeed, when

Bormuth expressed his belief that the Board of Commissioners was violating the First

Amendment during the public-comment period of the August 2013 meeting, one of the

Commissioners made faces and then turned his back on Bormuth, refusing even to look at

Bormuth while he spoke. R. 10 (Am. Compl. ¶ 31) (Page ID #69).

Third, Bormuth has submitted evidence suggesting that the Board of Commissioners has

“allocated benefits and burdens based on participation in the prayer.” See Town of Greece,

134 S. Ct. at 1826 (controlling opinion). Shortly after Bormuth filed his complaint, Jackson

County officials nominated members for the County’s new Solid Waste Planning Committee

from a pool of applicants. R. 10 (Am. Compl. ¶ 33) (Page ID #69). Although Bormuth had

three years of experience working on related issues, the Board of Commissioners did not

nominate him. Id. Given that the Commissioners had publicly expressed their contempt for

Bormuth, id. ¶ 31 (Page ID #69); see also R. 14 (Pl. First Mot. for Summ. J., Ex. C) (Page ID

#149), the Board of Commissioners’ decision not to nominate him could easily be interpreted as

a response to Bormuth’s refusal to participate in the prayers. Bormuth also sought to supplement

the record with a letter he received from the Board of Commissioners denying him appointment

to the Board of Public Works. R. 52 (Pl. Second Mot. to Suppl. Record at 1) (Page ID #932).

Although Bormuth is confident that he was ‘the most qualified applicant,’ the Board of

No. 15-1869 Bormuth v. County of Jackson Page 27

Commissioners did not name him for the position. Id. ¶ 6 (Page ID #933). This rejection came

just shy of a month after one of the Commissioners publicly called Bormuth a “nitwit.” See

County of Jackson, Personnel & Finance Committee November 12, 2013 Jackson County, MI,

YouTube (Dec. 19, 2013), http://tinyurl.com/2013nov12 (43:22‒43:41). Like the County’s

decision not to nominate him to the Solid Waste Planning Committee, this decision suggests that

the Board of Commissioners was denying benefits to residents based on their beliefs.

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.

No. 15-1869 Bormuth v. County of Jackson Page 28

C. The Dissent’s Reliance on a Recent Fourth Circuit Case

The dissent contends that its “view as to the constitutionality of Jackson County’s

invocation practice is consistent with the Fourth Circuit’s recent opinion in Lund v. Rowan

County.” Dissent at 61. The Fourth Circuit has granted rehearing en banc in Lund, undercutting

the persuasive value of the now-questioned panel majority. Lund v. Rowan County, (No. 15-

1519) 2016 WL 6441047, at *1 (4th Cir. Oct. 31, 2016) (granting rehearing en banc). More

importantly, regardless of the outcome of the en banc rehearing, the dissent’s reliance on Lund

falls flat for two reasons: First, Judge Wilkinson’s panel dissent in Lund is much more

convincing than the majority opinion (a view that a significant number of Fourth Circuit judges

presumably share). Second, contrary to the dissent’s assertion that “Rowan County’s invocation

practice is remarkably similar” to Jackson County’s practice, there are significant factual

differences. Dissent at 61. Because of these differences, even if the Lund majority opinion were

correct that the Rowan County prayer practice complies with the Establishment Clause, the

Jackson County prayer practice still violates the Establishment Clause.

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

No. 15-1869 Bormuth v. County of Jackson Page 29

“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.

On the second point, the prayer practice that we confront in this case presents even more

constitutionally suspect factors than the prayer practice that the Fourth Circuit confronted in

Lund. The factual distinctions are important because “[t]he [Establishment Clause] inquiry

remains a fact-sensitive one.” Town of Greece, 134 S. Ct. at 1825. To structure this fact-

sensitive inquiry, the Lund panel majority focuses on four “guideposts for analyzing whether a

particular practice goes beyond constitutional bounds.” Lund, 837 F.3d at 420. Examining the

facts of this case through those four guideposts shows that even if the Lund majority is correct

that the Rowan County prayer practice complies with the Establishment Clause, the Jackson

County prayer practice nevertheless violates the Establishment Clause.

Addressing the first panel guidepost, “selection of the content of legislative prayer,” the

Lund majority explains that it is important to “look[] to the activities of the legislature as a whole

No. 15-1869 Bormuth v. County of Jackson Page 30

in considering legislative prayer.” Id. at 421. The Lund majority determines that the Rowan

County Board “never altered its practice to limit a non-Christian commissioner or attempted to

silence prayers of any viewpoint.” Id. at 424. 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).

In addition, the Jackson County Board of Commissioners attempted to silence Bormuth’s

criticism of the prayer practice, insulting Bormuth in the process. When Bormuth complained

about the prayer practice at a meeting, one of the Commissioners made a disgusted face and

turned his chair around, refusing to look at Bormuth while he spoke. R. 10 (Am. Compl. at ¶ 31)

(Page ID #69). Later, discussing Bormuth’s complaints about the prayer practice, a

Commissioner said that he “get[s] sick of” “[a]ll this political correctness” and another said that

Bormuth was “attacking . . . my Lord and savior Jesus Christ.” R. 14 (Pl. First Mot. for Summ.

J., Ex. C) (Page ID #149). Accordingly, the Board not only purposefully excluded non-Christian

prayer, but also insulted and attempted to silence Bormuth’s complaints about their exclusionary

prayer practice.

The Jackson County Board of Commissioners’ affirmative decision to exclude other

prayer givers also requires us to consider the second Lund panel majority guidepost, the content

of the prayers, in a different light. Addressing the second guidepost, the Lund majority explains,

No. 15-1869 Bormuth v. County of Jackson Page 31

“‘If the course and practice over time shows that the invocations denigrate nonbelievers or

religious minorities, threaten damnation, or preach conversion,’ a constitutional line can be

crossed.” Lund, 837 F.3d at 421 (quoting Town of Greece, 134 S. Ct. at 1823). 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.’”

No. 15-1869 Bormuth v. County of Jackson Page 32

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.

The Lund panel majority also concludes that Rowan County’s prayer practice is not

coercive. The Lund panel majority focuses on whether the Board “‘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.’” Lund, 837 F.3d at

427 (quoting Town of Greece, 134 S. Ct. at 1826). Here again, factual distinctions between this

case and Lund mean that even if the Lund majority is correct that the Rowan County Board of

Commissioners’ prayer practice is not coercive, the Jackson County Board of Commissioners’

prayer practice is coercive.

Although both Boards of Commissioners directed the public to participate in prayers,

there is no evidence that the Rowan County Board of Commissioners singled out dissidents for

opprobrium or allowed their decisions to be influenced by a constituent’s acquiescence (or

refusal to acquiesce) to the prayer opportunity. The Jackson County Commissioners, on the

other hand, did single out Bormuth for opprobrium. Commissioners stated that Bormuth’s

lawsuit was “nonsense” and “an attack on Christianity and Jesus Christ, period” and called

Bormuth a “nitwit” who was “try[ing] to deprive me or other people, of my faith, of my rights.”

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). There is also evidence that some of Jackson County Commissioners’ official decisions

were influenced by Bormuth’s refusal to acquiesce to the prayer opportunity. They denied

Bormuth a nomination for the Solid Waste Planning Committee and, less than a month after a

Commissioner publicly called him a nitwit, denied him an appointment to the Board of Public

No. 15-1869 Bormuth v. County of Jackson Page 33

Works. R. 10 (Am. Compl. at ¶ 33) (Page ID #69); R. 52 (Pl. Second Mot. to Suppl. Record at

1) (Page ID #932).

The distinctions between the actions of the Jackson County Board of Commissioners in

the case before us and the actions of the Rowan County Board of Commissioners in Lund are

significant. Because of these distinctions, even if the panel majority’s opinion in Lund is correct,

it does not influence our assessment of the facts before us in this “fact-sensitive” inquiry. Town

of Greece, 134 S. Ct. at 1825.

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

III. CONCLUSION

For the reasons stated above, we REVERSE the grant of summary judgment to the

County and REMAND for entry of summary judgment in favor of Bormuth and for further

proceedings consistent with this opinion.

10

Bormuth’s remaining arguments, including that the panel must apply the three-part test of Lemon v.

Kurtzman, 403 U.S. 602 (1971), as well as the Treaty of Tripoli (a 1797 treaty with Tripolitania (now Libya) which

states that “the Government of the United States of America is not, in any sense, founded on the Christian religion”)

are meritless. Bormuth also does not have standing to assert an Establishment Clause violation on behalf of the

children who lead attendees in the Pledge of Allegiance. See Valley Forge Christian Coll. v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464, 489‒90 (1982).

No. 15-1869 Bormuth v. County of Jackson Page 34

_________________

DISSENT

_________________

GRIFFIN, Circuit Judge, dissenting. Since the founding of our Republic, Congress, state

legislatures, and many municipal bodies have commenced each legislative session with a prayer.

Contrary to today’s decision, the Supreme Court has ruled twice that legislative prayer does not

violate the Establishment Clause of the United States Constitution.1 Marsh v. Chambers,

463 U.S. 783 (1983); Town of Greece v. Galloway, 134 S. Ct. 1811 (2014). Moreover, today’s

decision conflicts with the recent decision of the Court of Appeals for the Fourth Circuit

upholding the constitutionality of legislator-led prayer. Lund v. Rowan Cty., 837 F.3d 407 (4th

Cir. 2016). Because the majority’s opinion declaring Jackson County’s invocation practice

unconstitutional contravenes the First Amendment and Supreme Court precedent, I respectfully

dissent.

I.

Marsh v. Chambers was the first Supreme Court decision upholding legislative prayer

against an Establishment Clause challenge. In Marsh, the plaintiffs claimed that the Nebraska

Legislature’s practice of opening its sessions with a prayer by its chaplain violated the First

Amendment. The salient facts of Nebraska’s practice included that the chaplain was only of one

denomination (Presbyterian); the Legislature selected the chaplain for sixteen consecutive years;

paid him with public funds; and the chaplain gave prayers “in the Judeo-Christian tradition.”

463 U.S. at 793. The Supreme Court emphasized that these facts must be viewed against the

historical background of legislative prayer, which dates back to our Republic’s founding: “The

opening of sessions of legislative and other deliberative public bodies with prayer is deeply

embedded in the history and tradition of this country.” Id. at 786. The Continental Congress, for

example, “adopted the traditional procedure of opening its session with a prayer offered by a

paid chaplain.” Id. at 787. Moreover, the First Congress “authorized the appointment of paid

chaplains” for the chambers just three days before it approved the language of the First

1

The Establishment Clause is applicable to the states by operation of the Due Process Clause of the

Fourteenth Amendment. See, e.g., Everson v. Bd. of Ed. of Ewing Tp., 330 U.S. 1 (1947).

No. 15-1869 Bormuth v. County of Jackson Page 35

Amendment. Id. at 787–88. Given this historical foundation, the Supreme Court rejected the

claim that Nebraska’s invocation practice violated the Establishment Clause: “Clearly the men

who wrote the First Amendment Religion Clause did not view paid legislative chaplains and

opening prayers as a violation of that Amendment, for the practice of opening sessions with

prayer has continued without interruption ever since that early session of Congress.” Id. at 788.

Based on this “unique,” “unambiguous and unbroken history . . . , the practice of opening

legislative sessions with prayer has become part of the fabric of our society. To invoke Divine

guidance on a public body entrusted with making the laws is not, in these circumstances, an

‘establishment’ of religion or a step toward establishment; it is simply a tolerable

acknowledgment of beliefs widely held among the people of this country.” Id. at 791, 792.

That the Nebraska Legislature selected a chaplain of the same denomination for sixteen

consecutive years was of no moment: “Absent proof that the chaplain’s reappointment stemmed

from an impermissible motive,” one could not “perceive any suggestion that choosing a

clergyman of one denomination advances the beliefs of a particular church.” Id. at 793. Nor was

it material that public funds paid for the chaplain, given that the Continental Congress did the

same. Id. at 794. And finally, the Supreme Court cautioned against the judiciary “embark[ing]

on a sensitive evaluation or . . . pars[ing] the content of a particular prayer.” Id. at 795. That is,

“[t]he content of the prayer is not of concern to judges where, as here, there is no indication that

the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any

other, faith or belief.” Id. at 794–95.

Marsh is widely viewed as “carving out an exception” to Establishment Clause

jurisprudence “because it sustained legislative prayer without subjecting the practice to any of

the formal tests that have traditionally structured th[e] inquiry.” Town of Greece, 134 S. Ct. at

1818 (citation omitted). This includes the generally applicable three-part Lemon v. Kurtzman,

403 U.S. 602, 614 (1971), test for which Bormuth advocates. See, e.g., Am. Civil Liberties

Union of Ohio v. Capitol Square Review & Advisory Bd., 243 F.3d 289, 305–06 (6th Cir. 2001)

(en banc) (“It is worth mentioning, perhaps, that even the author of the Lemon decision, the late

Chief Justice Burger, did not see fit to apply the Lemon test when he wrote the Court’s opinion in

No. 15-1869 Bormuth v. County of Jackson Page 36

[Marsh].”); accord Smith v. Jefferson Cty. Bd. of Sch. Commr’s, 788 F.3d 580, 589–90 (6th Cir.

2015).

Unfortunately, dicta in the Marsh opinion led to judicial confusion regarding its holding.

This arose from a footnote in which the Court explained the “Judeo-Christian” nature of the

prayers:

[Chaplain] Palmer characterizes his prayers as “nonsectarian,” “Judeo Christian,”

and with “elements of the American civil religion.” Although some of his earlier

prayers were often explicitly Christian, Palmer removed all references to Christ

after a 1980 complaint from a Jewish legislator.

463 U.S. at 793 n.14.

In County of Allegheny v. A.C.L.U., 492 U.S. 573 (1989), a case involving a crèche

placed on the steps of a county courthouse, the Court drew a distinction between sectarian and

nonsectarian references based upon this footnote. Id. at 603. The nonsectarian reference in

Marsh, as “recast[]” by County of Allegheny, Town of Greece, 134 S. Ct. at 1821, led some

courts, including our own, to conclude that the constitutionality of legislative prayer turned upon

content neutrality. See Stein v. Plainwell Cmty. Sch., 822 F.2d 1406, 1410 (6th Cir. 1987); see

also Rubin v. City of Lancaster, 710 F.3d 1087, 1094 n.6 (9th Cir. 2013) (collecting cases). The

Supreme Court corrected this error in Town of Greece v. Galloway.

II.

In Town of Greece, the town council invited local ministers to give invocations before

each town board meeting. 134 S. Ct. at 1816. The town permitted any person of any faith to

give the invocation, did not review the prayers in advance, and did not provide any guidance as

to tone or content. Id. Although some had a “distinctly Christian idiom,” and for eight years

only Christian ministers gave prayers, upon complaint of such pervasive themes, the town

expressly invited persons of other faiths to deliver the prayer. Id. at 1816–17. Contending that

the Establishment Clause mandated legislative prayers be “inclusive and ecumenical” to a

“generic God,” some town residents sued. Id. at 1817.

No. 15-1869 Bormuth v. County of Jackson Page 37

In reversing the Second Circuit’s decision that Greece’s practice violated the

Establishment Clause, the Supreme Court emphasized again the unique nature of legislative

prayer: “legislative prayer lends gravity to public business, reminds lawmakers to transcend

petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and

peaceful society.” Id. at 1818. Purposeful prayers seeking to solemnly bind legislators are

consistent with our tradition where the prayer givers “ask their own God for blessings of peace,

justice, and freedom that find appreciation among people of all faiths. That a prayer is given in

the name of Jesus, Allah, or Jehovah, or that it makes passing reference to religious doctrines,

does not remove it from that tradition. These religious themes provide particular means to

universal ends.” Id. Most importantly, history teaches that these solemn prayers “strive for the

idea that people of many faiths may be united in a community of tolerance and devotion.” Id.

They are permissible because “[o]ur tradition assumes that adult citizens, firm in their own

beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a

different faith.” Id. at 1823. This tradition extends not just to state and federal legislatures, but

also to local legislative bodies. Id. at 1819.

Accordingly, the Supreme Court in Town of Greece addressed the issue of “whether the

prayer practice in the town of Greece fit[] within the tradition long followed in Congress and the

state legislatures,” and held that it did. Id. First, the Court rejected the notion that Marsh

permits only generic prayers, abrogating County of Allegheny and overruling decisions to the

contrary. Id. at 1820–24. That is, “Marsh nowhere suggested that the constitutionality of

legislative prayer turns on the neutrality of its content.” Id. at 1821. Marsh turned not on

espousement of “generic theism,” but rather on the “history and tradition” showing prayer—even

one that is explicitly Christian in tone—“in this limited context could coexist with the principles

of disestablishment and religious freedom.” Id. at 1820 (citation and alteration omitted).

Moreover, requiring nonsectarian prayers “would force the legislatures that sponsor prayers and

the courts that are asked to decide these cases to act as supervisors and censors of religious

speech, a rule that would involve government in religious matters to a far greater degree than is

the case under the town’s current practice of neither editing or approving prayers in advance nor

criticizing their content after the fact.” Id. at 1822. Put differently, once the government has

“invite[d] prayer into the public sphere,” it “must permit a prayer giver to address his or her own

No. 15-1869 Bormuth v. County of Jackson Page 38

God or gods as conscience dictates, unfettered by what an administrator or judge considers to be

nonsectarian.” Id. at 1822–23. Nonetheless, the Court acknowledged that there are limits:

If the course and practice over time shows that the invocations denigrate

nonbelievers or religious minorities, threaten damnation, or preach conversion,

many present may consider the prayer to fall short of the desire to elevate the

purpose of the occasion and to unite lawmakers in their common effort.

***

Prayer that reflects beliefs specific to only some creeds can still serve to

solemnize the occasion, so long as the practice over time is not “exploited to

proselytize or advance any one, or to disparage any other, faith or belief.”

Id. at 1823 (quoting Marsh, 463 U.S. at 794–95).

The Supreme Court in Town of Greece had little trouble finding the invocation prayers

were in keeping with our tradition. Id. at 1824. Though invoking Jesus and other Christian

references, the prayers involved “universal themes” like celebrating the changing of the seasons

or calling for a “spirit of cooperation.” Id. To be sure, some prayers went astray of these

themes, with one condemning “objectors [to the prayer practice] as a minority who are ignorant

of the history of our country” and another “lament[ing] that other towns did not have God-

fearing leaders.” Id. (quotations omitted). But these remarks did not “despoil a practice that on

the whole reflects and embraces our tradition.” Id. That is, “[a]bsent a pattern of prayers that

over time denigrate, proselytize, or betray an impermissible government purpose, a challenge

based solely on the content of a prayer will not likely establish a constitutional violation. Marsh

. . . requires an inquiry into the prayer opportunity as a whole, rather than into the contents of a

single prayer.” Id.

The Court also rejected the argument that the town violated the Establishment Clause by

inviting predominantly Christian ministers to lead the prayer, noting that the town made

reasonable efforts to identify all congregations within its borders and represented that it would

welcome a prayer by anyone who wished to give one. Id. Moreover, the town’s composition of

nearly all Christians did not “reflect an aversion or bias on the part of town leaders against

minority faiths. So long as the town maintains a policy of nondiscrimination, the Constitution

No. 15-1869 Bormuth v. County of Jackson Page 39

does not require it to search beyond its borders for non-Christian prayer givers in an effort to

achieve religious balancing.” Id.

Second, the Supreme Court in Town of Greece rejected the argument that the intimate

nature of a town board meeting—where citizens attend meetings to “accept awards; speak on

matters of local importance; and petition the board for action that may affect their economic

interests”—coerces citizens to support a religion through legislative prayer. Id. at 1824–25.

Justice Kennedy, joined by Chief Justice Roberts and Justice Alito, analyzed coercion

broadly in the context of the “subtle coercive pressures” the audience might feel while listening

to the prayer. He emphasized that “[t]he inquiry remains a fact-sensitive one that considers both

the setting in which the prayer arises and the audience to whom it is directed.” Id. at 1825

(Kennedy, J.). It must also be evaluated “against the backdrop of historical practice” and

“presumed that the reasonable observer is acquainted with this tradition and understands that its

purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in

the lives of many private citizens, not to afford government an opportunity to proselytize or force

truant constituents into the pews.” Id. It is the “lawmakers themselves,” not the public, who are

the “principal audience for these invocations” as they “may find that a moment of prayer or quiet

reflection sets the mind to a higher purpose and thereby eases the task of governing.” Id. “For

members of town boards and commissions, who often serve part-time and as volunteers,

ceremonial prayer may also reflect the values they hold as private citizens. The prayer is an

opportunity for them to show who and what they are without denying the right to dissent by

those who disagree.” Id. at 1826. And in concluding that “legislative bodies do not engage in

impermissible coercion merely by exposing constituents to prayer they would rather not hear and

in which they need not participate,” Justice Kennedy emphasized that “[a]dults often encounter

speech they find disagreeable; and an Establishment Clause violation is not made out any time a

person experiences a sense of affront from the expression of contrary religious views in a

legislative forum, especially where, as here, any member of the public is welcome in turn to offer

an invocation reflecting his or her own convictions.” Id. at 1826–27.

No. 15-1869 Bormuth v. County of Jackson Page 40

In one paragraph, the three Justices discussed hypothetical facts that could change their

analysis:

The 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. No such thing occurred in the town of Greece. Although board

members themselves stood, bowed their heads, or made the sign of the cross

during the prayer, they at no point solicited similar gestures by the public.

Respondents point to several occasions where audience members were asked to

rise for the prayer. These requests, however, came not from town leaders but

from the guest ministers, who presumably are accustomed to directing their

congregations in this way and might have done so thinking the action was

inclusive, not coercive. . . . Respondents suggest that constituents might feel

pressure to join the prayers to avoid irritating the officials who would be ruling on

their petitions, but this argument has no evidentiary support. Nothing 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. In no instance did town

leaders signal disfavor toward nonparticipants or suggest that their stature in the

community was in any way diminished. A practice that classified citizens based

on their religious views would violate the Constitution, but that is not the case

before this Court.

Id. at 1826. They also noted the audience had options to avoid the prayers altogether:

Nothing in the record suggests that members of the public are dissuaded from

leaving the meeting room during the prayer, arriving late, or even, as happened

here, making a later protest. In this case, as in Marsh, board members and

constituents are “free to enter and leave with little comment and for any number

of reasons.” Should nonbelievers choose to exit the room during a prayer they

find distasteful, their absence will not stand out as disrespectful or even

noteworthy. And should they remain, their quiet acquiescence will not, in light of

our traditions, be interpreted as an agreement with the words or ideas expressed.

Neither choice represents an unconstitutional imposition as to mature adults, who

“presumably” are “not readily susceptible to religious indoctrination or peer

pressure.”

Id. at 1827 (citations omitted).

Justices Thomas and Scalia did not join the coercion section of Justice Kennedy’s

opinion (Part II-B), but expressly disagreed with it. In a separate opinion, Justice Thomas,

joined by Justice Scalia, wrote that coercion is limited to “coercive state establishments” “by

No. 15-1869 Bormuth v. County of Jackson Page 41

force of law or threat of penalty,” such as mandatory church attendance, levying taxes to

generate church revenue, barring ministers who dissented, and limiting political participation to

members of the established church. Id. at 1837 (Thomas, J., concurring in part and in the

judgment). Most importantly, Justices Thomas and Scalia rejected Justice Kennedy’s

broadening of coercion to also include social pressures:

At a minimum, there is no support for the proposition that the framers of the

Fourteenth Amendment embraced wholly modern notions that the Establishment

Clause is violated whenever the “reasonable observer” feels “subtle pressure,” or

perceives governmental “endors[ement].”

***

Thus, to the extent coercion is relevant to the Establishment Clause analysis, it is

actual legal coercion that counts—not the “subtle coercive pressures” allegedly

felt by respondents in this case. The majority properly concludes that “[o]ffense

. . . does not equate to coercion,” since “[a]dults often encounter speech they find

disagreeable[,] and an Establishment Clause violation is not made out any time a

person experiences a sense of affront from the expression of contrary religious

views in a legislative forum.” I would simply add, in light of the foregoing

history of the Establishment Clause, that “[p]eer pressure, unpleasant as it may be,

is not coercion” either.

Id. at 1838 (alterations in original and internal citations omitted).

III.

In the present case, my colleagues refuse to follow Marsh and Town of Greece,

concluding Jackson County’s prayer practice falls outside of the traditional understanding of

legislative prayer. They do so by setting aside this historical-based analysis, and reviving

Lemon’s endorsement test based upon three alleged distinctions: the identity of the prayer giver,

the lack of non-Christian prayer givers, and the Commissioners’ purpose for giving the prayer.

I respectfully disagree.

A.

The Supreme Court has recognized “[w]e are a religious people whose institutions

presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952) (emphasis added).

All three of our branches of government have officially acknowledged religion’s role in

No. 15-1869 Bormuth v. County of Jackson Page 42

American life. See Lynch v. Donnelly, 465 U.S. 668, 674–78 (1984) (detailing the “official

references to the value and invocation of Divine guidance in deliberations and pronouncements

of the Founding Fathers and contemporary leaders”).

Legislative prayer is part of this tradition: “The opening of sessions of legislative and

other deliberative public bodies with prayer is deeply embedded in the history and tradition of

this country.” Marsh, 463 U.S. at 786. On this point, the Supreme Court has stated: “[T]he

Framers considered legislative prayer a benign acknowledgment of religion’s role in society.”

Town of Greece, 134 S. Ct. at 1819 (emphasis added). It “has become part of our heritage and

tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or

the recitation of ‘God save the United States and this honorable Court’ at the opening of [the

Supreme Court’s (and Sixth Circuit’s)] sessions.” Id. at 1825 (Kennedy, J.). Thus, we must

evaluate Jackson County’s prayer practice in light of our history, asking whether it “fits within

the tradition followed in Congress and the state legislatures.” Id. at 1819. That tradition

includes offering prayers, even those that reflect “beliefs specific to only some creeds,” that

“seek peace for the Nation, wisdom for its lawmakers, and justice for its people, values that

count as universal and that are embodied not only in religious traditions, but in our founding

documents and laws.” Id. at 1823.

Contrary to the majority’s approach, the Supreme Court has never taken a granular view

of the practice, focusing not on who gives a prayer, but rather whether there is a general practice

consistent with our historical traditions. Marsh, 463 U.S. at 792–95; Town of Greece, 134 S. Ct.

at 1819. Absent is any restriction as to who may give the prayer in order to be consistent with

historical practice. Marsh, for example, reasoned that “[c]learly the men who wrote the First

Amendment Religion Clause did not view paid legislative chaplains and opening prayers as a

violation of [the First] Amendment.” 463 U.S. at 788. The Supreme Court’s reasoning omits the

majority’s qualifier: “opening prayers by non-governmental officials.” Our history clearly

indicates a role for legislators to give prayers before legislative bodies. See, e.g., S. Rep. No. 32-

376, at 4 (1853) (“[The founders] did not intend to prohibit a just expression of religious

devotion by the legislators of the nation, even in their public character as legislators.”); American

Archives, Documents of the American Revolutionary Period, 1774-76, v1:1112 (documenting

No. 15-1869 Bormuth v. County of Jackson Page 43

legislator-led prayer in South Carolina’s legislature in 1775); see also Town of Greece, 134 S. Ct.

at 1833 (Alito, J., concurring) (discussing proposal by Samuel Adams to have a delegate “open

the session with a prayer,” but which was later opposed on sectarian grounds, not on the grounds

that the prayer giver was a delegate).

Indeed, as reflected in the records in Marsh, and Town of Greece, this history of

legislators leading prayers is uninterrupted. Take Marsh’s conclusion that “the practice of

opening sessions with prayer . . . has been followed consistently in most of the states.” 463 U.S.

at 789–90. In drawing this conclusion, the Court relied on an amicus brief by the National

Conference of State Legislatures (“NCSL”), which surveyed the various practices across the

state legislatures. Id. at n.11. The NCSL expressly disclaimed the notion that chaplain-only

prayers are the norm: “The opening legislative prayer may be given by various classes of

individuals. They include chaplains, guest clergymen, legislators, and legislative staff

members. . . . All bodies, including those with regular chaplains, honor requests from individual

legislators either to give the opening prayer or to invite a constituent minister to conduct the

prayer.” Brief of NCSL as Amicus Curiae, Marsh v. Chambers, 463 U.S. 783 (1983) (No. 82-

83), 1982 WL 1034560, at *2, *3 (emphasis added).

The record in Town of Greece also emphasizes the long-standing practice of legislator-led

prayer. Observe the prayer offered by one of Greece’s councilmen (and one that is quite similar

to the prayers offered here):

Helfer: Please bow your heads and join me in prayer. Heavenly Father we thank

you for this day. We thank you for the opportunity to now join together here to

conduct the important public business that is before us. We ask that you would

guide the decision making and the discussions that take place this evening, and

that you would bless each of the participants in the town board as well as all of

those who are here in the audience and may be viewing on television. We pray

this in your name, amen.

Joint Appendix at 66a-67a, Town of Greece v. Galloway, 134 S. Ct. 1811 (2014), 2013 WL

3935056. Other council members offered a silent prayer, directing the audience to “remain

standing” and “bow heads” while reflecting upon the September 11, 2001, terrorist attacks and

Greece residents who recently passed away. Id. at 26a–27a, 29a, 45a, 57a.

No. 15-1869 Bormuth v. County of Jackson Page 44

Here, Jackson County presented a 2002 NCSL study reinforcing its earlier conclusion

that chaplains do not exclusively give opening prayers: “Forty-seven chambers allow people

other than the designated legislative chaplain or a visiting chaplain to offer the opening prayer.

Legislators, chamber clerks and secretaries, or other staff may be called upon to perform this

opening ceremony.” (emphasis added). More specifically, legislators gave prayers in thirty-one

states. The same study notes that only members are permitted to deliver prayers in Rhode Island.

Closer to Jackson County, for example, the Michigan House of Representatives permits an

invocation to “be delivered by the Member or a Member’s guest.” Mich. H.R. R. 16 (emphasis

added). So too does Congress. See, e.g., 161 Cong. Rec. S3313 (daily ed. May 23, 2015)

(documenting invocation by Oklahoma Senator James Lankford); United States House of

Representatives, Office of the Chaplain, Guest Chaplains,

http://chaplain.house.gov/chaplaincy/guest_chaplains.html (last visited Feb. 10, 2017) (listing

guest chaplains “who have been recommended by the Members of Congress”).

Jackson County’s prayer practice is consistent with this tradition, and, therefore, the

district court correctly ruled Bormuth had not established facts rendering the prayer practice

outside the realm of Marsh and Town of Greece. One of the prayers Bormuth complains about is

illustrative of typical prayers given by the Commissioners:

Bow your heads with me please. Heavenly father we thank you for this day and

for this time that we have come together. Lord we ask that you would be with us

while we conduct the business of Jackson County. Lord help us to make good

decisions that will be best for generations to come. We ask that you would bless

our troops that protect us near and far, be with them and their families. Now Lord

we wanna give you all the thanks and all the praise for all that you do. Lord I

wanna remember bereaved families tonight too, that you would be with them and

take them through difficult times. We ask these things in your son Jesus’s name.

Amen.

As in Town of Greece, this and other prayers “do not fall outside the tradition [the Supreme

Court] has recognized. A number of the prayers did invoke the name of Jesus, the Heavenly

Father, or the Holy Spirit, but they also invoked universal themes,” 134 S. Ct. at 1824, such as

asking for guidance to “make good decisions that will be best for generations to come,” and to

express well-wishes to military and community members. There is no evidence that the prayers

“denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion” or

No. 15-1869 Bormuth v. County of Jackson Page 45

that there is a “pattern of prayers that over time denigrate, proselytize, or betray an impermissible

government purpose.” Id. at 1823, 1824.

There is a bit of irony in the majority opinion’s per se condemnation of legislator prayer.

The purpose of legislative prayer is to “invite[] lawmakers to reflect upon shared ideals and

common ends before they embark on the fractious business of governing.” Id. at 1823. As

Justice Kennedy recognized, legislative prayer exists “largely to accommodate the spiritual needs

of lawmakers and connect them to a tradition dating to the time of the Framers.” Id. at 1826

(Kennedy, J.). It “reflect[s] the values [public officials] hold as private citizens. The prayer is an

opportunity for them to show who and what they are without denying the right to dissent by

those who disagree.” Id. As one of Jackson County’s Commissioners stated, “Commissioners,

as individuals, have a right to pray as we believe.”

Preventing Jackson County’s Commissioners from giving prayers of their own choosing

detracts from their ability to take “a moment of prayer or quiet reflection [to] set[] the[ir] mind to

a higher purpose and thereby ease[] the task of governing.” Id. Town of Greece tells us that

“government must permit a prayer giver to address his or her own God or gods as conscience

dictates,” and that it is not the role of the judiciary to act “as [a] supervisor[] and censor[] of

religious speech.” Id. at 1822. That is exactly the role the majority assumes by finding an

appreciable difference between legislator-led and legislator-authorized prayer.

B.

The majority opinion jettisons the historical overlay, and instead applies, in effect, the

inapplicable Lemon test. It tells us, for example, that because the Commissioners give the

prayers, “there is no distinction between the government and the prayer giver: they are one and

the same.” Accordingly, Jackson County is “effectively endorsing a specific religion” because

all of the commissioners were “Christian.” In doing so, it misconstrues the facts and Supreme

Court precedent.

No. 15-1869 Bormuth v. County of Jackson Page 46

1.

Noticeably absent from the majority’s opinion is any acknowledgment that Jackson

County’s invocation practice is facially neutral regarding religion. In Jackson County, on a

rotating basis, each elected Commissioner, regardless of his or her religion (or lack thereof), is

afforded an opportunity to open a session with a short invocation based on the dictates of his

own conscience. Neither other Commissioners, nor the Commission as a whole, review or

approve the content of the invocations.

The majority finds it significant that at the time of the sessions referenced in plaintiff’s

complaint, all the elected Jackson County Commissioners were “Christian.” While all the

Commissioners presumably believed in Jesus Christ, the faiths of Christianity are diverse, not

monolithic. The Reformation of the Fifteenth Century spawned an explosion of these diverse

Christian faiths. Many of those practicing these new Christian faiths sought religious freedom in

America and found refuge from the tyranny inflicted by sectarian governments. To guarantee

religious liberty to all persons, including those practicing the emerging Christian religions, the

drafters and ratifiers of the First Amendment of our Constitution provided:

Congress shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof.

U.S. Const. amend. I.

My colleagues do not know the religious faiths of the 2013-2014 Jackson County

Commissioners. Nor does the majority know the religious faiths of the current Commissioners.

In this regard, the religious allegiance of the members of the Commission is subject to change

with each election cycle. A process, of course, that guarantees, “no religious Test shall ever be

required as a Qualification to any Office or public Trust under the United States.” U.S. Const.

art. VI, cl. 3. With each election, the people of Jackson County may elect a Commissioner who

is Muslim, Buddhist, Hindu, Jewish, Mormon, Roman Catholic, Eastern Orthodox Christian,

Baptist, Methodist, Presbyterian, Lutheran, Episcopalian, Congregationalist, Quaker, Amish,

Mennonite, Pentecostal, “Animist,” Pagan, Atheist, Agnostic, and so on. The religious faiths of

the periodically elected officials—including Jackson County’s Commissioners—are dynamic,

not static. In fact, east of Jackson County is the City of Hamtramck, Michigan, which just

No. 15-1869 Bormuth v. County of Jackson Page 47

elected a Muslim majority city council.2 Were Mr. Bormuth elected to the Jackson County

Board of Commissioners, under the religious-neutral Jackson County legislative prayer practice,

he could freely begin a legislative session with a prayer of his choosing—to “Mother Earth,” the

sun, the moon (or otherwise).

2.

The conclusion in the majority opinion that Jackson County is “effectively endorsing a

specific religion” is one borne out of Lemon, not Marsh or Town of Greece. Yes, the prayer

giver and the government may be “one and the same,” but religious endorsement is a thread

woven by the Lemon test. Smith, 788 F.3d at 587 (explaining that “the Sixth Circuit ‘has treated

the endorsement test as a refinement or clarification of the Lemon test’”) (citation omitted). If

Lemon applied, whether the prayer givers and the government are “one and the same” (read,

“excessive entanglement”) could go to endorsement of religion. But as the majority properly

concludes in a later footnote, Lemon does not control this case.3 Neither Marsh nor Town of

Greece speak in Lemon’s terms—i.e., balancing purposes and government entanglement—when

examining the constitutionality of legislative prayer. In viewing Jackson County’s prayer

practice through an endorsement rubric in lieu of through history and tradition, the majority

effectively rewrites over thirty-plus years of Supreme Court jurisprudence—applying the Lemon

rule instead of Marsh’s exception. See Town of Greece, 134 S. Ct. at 1818 (“Marsh is

sometimes described as carving out an exception to the Court’s Establishment Clause

jurisprudence, because it sustained legislative prayer without subjecting the practice to any of the

formal tests that have traditionally structured this inquiry.”) (internal quotation marks and

citation omitted).4

2

See Kris Maher, Muslim-Majority City Council Elected in Michigan, Wall St. J, Nov. 9, 2015,

http://www.wsj.com/articles/muslim-majority-city-council-elected-in-michigan-1447111581.

3

I also concur with the majority’s rulings that the Treaty of Tripoli does not govern this matter and that

Bormuth does not have standing to assert his Pledge-of-Allegiance argument on behalf of other children.

4

Query whether even the Lemon-test supports the majority’s reasoning, for the Supreme Court has told us

in that context that “prayers by legislators do not insistently call for religious action on the part of citizens.”

McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 877 n.24 (2005).

No. 15-1869 Bormuth v. County of Jackson Page 48

For example, the majority opinion reasons Jackson County is “effectively endorsing a

specific religion” because the Commissioners are all themselves of Christian faith. This does not

comport with Marsh, where the Supreme Court sanctioned the practice of selecting the same

Presbyterian clergyman for sixteen consecutive years. 463 U.S. at 793. It also conflicts with

Town of Greece, which held that “[p]rayer that reflects beliefs specific to only some creeds can

still serve to solemnize the occasion, so long as the practice over time is not ‘exploited to

proselytize or advance any one, or to disparage any other, faith or belief.’” 134 S. Ct. at 1823

(quoting Marsh, 463 U.S. at 794–95). Thus, the district court correctly concluded that the all-

Christian makeup of the Commissioners is “immaterial”:

As 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. . . .

[T]he future may bring Commissioners of more diverse religious backgrounds

who will deliver invocations in those traditions. To hold otherwise would

contravene Marsh’s sanction of legislative prayer delivered for sixteen years by a

single Presbyterian clergyman.

(internal citations omitted). This reasoning also aptly applies Town of Greece’s express

command that legislative bodies “must permit a prayer giver to address his or her own God or

gods as conscience dictates, unfettered by what an administrator or judge considers to be

nonsectarian.” Id. at 1822.

Jackson County is also not required to provide “opportunities for persons of other faiths”

to offer invocations. Just like Greece, Jackson County maintains a facially-neutral prayer policy.

Id. at 1824. The majority discards this similarity, telling us instead that the Supreme Court

upheld the prayer practice in Town of Greece “in large part because it included prayers

representing a variety of faiths.” In no part did Town of Greece depend upon religious

heterogeneity. Its holding on this point is that “[s]o long as the town maintains a policy of

nondiscrimination,” the Establishment Clause does not mandate a municipality of predominately

one faith to “achieve religious balancing.” Id. Contrary to the majority’s assertion, Jackson

County’s prayer policy permits prayers of any—or no—faith, and the County need not adopt a

different policy as part of a “quest to promote a diversity of religious views.” Id. (internal

quotation marks omitted). However, my colleagues “require the [County] to make . . . judgments

No. 15-1869 Bormuth v. County of Jackson Page 49

about the number of religions it should sponsor and the relative frequency with which it should

sponsor each.” Id. (alterations and citation omitted). But as Town of Greece commands, such

“judgments” are “wholly inappropriate.” Id. (citation omitted).

Nor does it matter that the Commissioners’ invocations “are literally ‘governmental

speech.’” A public official need not be the one giving a prayer in order for the Establishment

Clause to apply. Cf. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 468 (2009)

(“A government entity may exercise this same freedom to express its views when it receives

assistance from private sources for the purpose of delivering a government-controlled

message.”). An official chaplain (Marsh), invited members of the community (Town of Greece),

and county commissioners (this case) are all government speakers when giving their respective

prayers. Under the majority’s theory, prayers by agents (like in Marsh and Town of Greece) are

somehow constitutionally different than prayers offered by principals. The Establishment Clause

does not tolerate, much less require, such mechanical line drawing. Cf. Lynch, 465 U.S. at 678–

79 (“The line between permissible relationships and those barred by the [Establishment] Clause

can no more be straight and unwavering than due process can be defined in a single stroke or

phrase or test.”); see also Simpson v. Chesterfield Cty. Bd. of Sup’rs, 404 F.3d 276, 289 (4th Cir.

2005) (Niemeyer, J., concurring) (stating in a pre-Town of Greece case that “when members of a

governmental body participate in a prayer for themselves and do not impose it on or prescribe it

for the people, the religious liberties secured to the people by the First Amendment are not

directly implicated, and the distinct, more tolerant analysis articulated in Marsh governs”).5

5

Pre-Town of Greece case law from other circuits (some albeit abrogated because they relied on the notion

that prayers must be ecumenical) supports the conclusion that the prayer giver’s identity is not dispositive under the

Marsh analysis. In a line of legislative prayer cases, the Fourth Circuit, for example, has characterized this position

as “miss[ing] the forest for the trees.” Joyner v. Forsyth Cty., 653 F.3d 341, 350 (4th Cir. 2011) (“It [is] the

governmental setting for the delivery of . . . prayers that court[s] constitutional difficulty, not those who actually

gave the invocation.”); see also Simpson, 404 F.3d at 286 (“The Court, neither in Marsh nor in Allegheny, held that

the identity of the prayer-giver, rather than the content of the prayer, was what would affiliate the government with

any one specific faith or belief.”) (quotations and alterations omitted). And retired Justice O’Connor, sitting by

designation, authored an opinion holding that prayers only given by city council members were permissible. See

Turner v. City Council of City of Fredericksburg, 534 F.3d 352, 355–56 (4th Cir. 2008). Other circuits are in

accord. See Pelphrey v. Cobb Cty., 547 F.3d 1263, 1281 (11th Cir. 2008) (listing “the identity of the speaker” as

one of many factors to consider); Snyder v. Murray City Corp., 159 F.3d 1227, 1233 (9th Cir. 1998) (en banc)

(“[T]here can be no Establishment Clause violation merely in the fact that a legislative body chooses not to appoint a

certain person to give its prayers.”) (emphasis added).

No. 15-1869 Bormuth v. County of Jackson Page 50

Finally, the majority relies on statements by Commissioner Rice to conclude Jackson

County desired to control prayer content. There are several problems with this conclusion. As

set forth in much more detail in Part IV-B-1 of this opinion, the most important is that these

statements fall within those prohibited from consideration by our appellate review principles.

They are lifted from a November 12, 2013, meeting that Bormuth neither directed the district

court to below, nor raised in his appellate brief to us. Bormuth has thus waived any argument as

to these statements. Chicago Title Ins. Corp. v. Magnuson, 487 F.3d 985, 995 (6th Cir. 2007);

Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002).

Even if we were to consider these statements, they do not support the majority’s

reasoning. In Town of Greece, the Court rejected the notion that isolated objectionable prayers—

those given by ministers who “disparaged those who did not accept the town’s prayer

practice”—voided the entire practice. 134 S. Ct. at 1824. Plucking stray examples, concluded

the Court, “do[es] not despoil a practice that on the whole reflects and embraces our tradition.”

Id. Only upon presentment of “a pattern of prayers that over time denigrate, proselytize, or

betray an impermissible government purpose” will “a challenge based solely on the content of a

prayer”—here, the limiting of the prayer giver’s identity to elected officials who happen to all be

one faith—likely succeed. Id.

Moreover, this use flies in the face of guidance eschewing examining the minds of

individual legislators as it relates to legislative intent: “a judiciary must judge by results, not by

the varied factors which may have determined legislators’ [actions]. We cannot undertake a

search for motive in testing constitutionality.” Daniel v. Family Sec. Life Ins. Co., 336 U.S. 220,

224 (1949); see also Tenney v. Brandhove, 341 U.S. 367, 378 (1951) (“In times of political

passion, dishonest or vindictive motives are readily attributed to legislative conduct and as

readily believed. Courts are not the place for such controversies.”) (footnote omitted). Rather,

we must heed the Supreme Court’s admonition that “[i]nquiries into [legislative] motives or

purposes are a hazardous matter.” United States v. O’Brien, 391 U.S. 367, 383 (1968). This is a

concern, I might add, that the Court has emphasized in Establishment Clause cases, which are to

be reviewed objectively, “without any judicial psychoanalysis of a drafter’s heart of hearts.”

No. 15-1869 Bormuth v. County of Jackson Page 51

McCreary Cty., 545 U.S. at 862. Stated differently, “Establishment Clause analysis does not

look to the veiled psyche of government officers.” Id. at 863.6

In sum, the record before us is one that fits neatly within the legislative invocation

jurisprudence as set forth by the Supreme Court in Marsh and Town of Greece.

IV.

I also disagree with the majority’s second holding—that even if Jackson County’s prayer

practice fits within the legislative prayer exception, it is unduly coercive.

A.

The majority opinion applies Part II-B of Justice Kennedy’s opinion as if it were the

opinion of the Court. It is not.

On the issue of coercion, the Town of Greece decision produced a majority result, but not

a majority rationale. Under these circumstances, Marks v. United States provides that “the

holding of the Court may be viewed as that position taken by those Members who concurred in

the judgments on the narrowest grounds. . . .” 430 U.S. 188, 193 (1977) (citation omitted).

“Taken literally, Marks instructs lower courts to choose the ‘narrowest’ concurring opinion and

to ignore dissents.” United States v. Cundiff, 555 F.3d 200, 208 (6th Cir. 2009) (citation

omitted). That is, we take the “one which relies on the ‘least’ doctrinally ‘far-reaching-common

ground’ among the Justices in the majority.” Id. at 209 (citation omitted).

Justice Thomas’s concurring opinion (joined by Justice Scalia) is “a logical subset” of

Justice Kennedy’s opinion, see, e.g., United States v. Kratt, 579 F.3d 558, 562 (6th Cir. 2009),

and is the “narrowest” ground of the judgment. Therefore, Justice Thomas’s opinion is

controlling under Marks. In his concurrence, Justice Thomas traced the historical roots of

coercion to “coercive state establishments”—coercion only “by force of law and threat of

6

The majority also takes these statements out of context. During that meeting, Jackson County’s

administrator proposed a policy (in response to this litigation) that allowed clergy to present opening prayers. Rice’s

statements are made within the context of who is defined as one who can present the prayer after being advised by

the administrator that the policy seeks to codify a nondiscriminatory selection of clergy: i.e., the Board cannot “give

direction” as to what kind of prayer can be offered and that “[t]hey can say whatever they want to say.”

http://tinyurl.com/2013nov12 (29:30, 32:00).

No. 15-1869 Bormuth v. County of Jackson Page 52

penalty.” 134 S. Ct. at 1837 (Thomas, J., concurring in part and in the judgment). This would

include, for example, mandatory church attendance, levying taxes to generate church revenue,

barring ministers who dissented, and limiting political participation to members of the

established church. Id.

In the instant case, the majority reasons to the contrary, claiming that Justice Kennedy’s

coercion test applies because it “offers the least change to the law.” This is so, they argue,

because Justice Kennedy cites concurring and plurality opinions while Justice Thomas relies

upon dissents (and concurrences where there were controlling majority or plurality opinions).

From this, my colleagues conclude that Justice Thomas’s concurrence “does not cite any

controlling law to support” his theories and, therefore, is not the “opinion that offers the least

change to the law.”

As the majority opinion admits, this premise is faulty: “the precise role of coercion in an

Establishment Clause inquiry is unclear, especially within the context of legislative prayer. In

that sense, both Justice Kennedy’s and Justice Thomas’s opinions involve at least some

departure from the state of the law as it existed before Town of Greece.” (emphasis added).

This puts it mildly. Marsh “carv[ed] out an exception” to the Supreme Court’s Establishment

Clause jurisprudence. Id. at 1818 (citation omitted). This is “because it sustained legislative

prayer without subjecting the practice to any of the formal tests that have traditionally structured

[the Establishment Clause] inquiry.” Id. (internal quotation marks and citation omitted). Marsh

took no effort to evaluate legislative prayer through a coercive lens, and it did so over Justice

Brennan’s dissenting opinion, which advocated for a coercion analysis. 463 U.S. at 798

(Brennan, J., dissenting) (discussing “indirect coercive pressure upon religious minorities to

conform” in the context of the Lemon test).

Town of Greece introduces coercion as an element to legislative prayer cases for the first

time. There is no dispute that Chief Justice Roberts, Justice Kennedy, and Justice Alito agree

that legal coercion constitutes coercion. On this, a majority of Justices agree. However, Justice

Kennedy’s position offers more of a change in the law because his opinion would introduce a

broader coercion analysis—as compared to Justice Thomas—where one never existed.

No. 15-1869 Bormuth v. County of Jackson Page 53

Fundamentally, Marks may not be used to create the fiction of Justices Thomas and

Scalia joining the portion of Justice Kennedy’s opinion to which they expressly disagreed. The

rationale of Marks that a Justice implicitly agrees with a more narrow holding is inapposite to the

positions of Justices Thomas and Scalia in Town of Greece who did not implicitly agree with

Part II-B of Justice Kennedy’s opinion, but expressly disagreed with it in a separate, concurring

opinion. For these reasons, the majority errs in applying Justice Kennedy’s test of coercion.

Under Justice Thomas’s opinion, Bormuth’s challenge easily fails. (In fact, he makes no

such argument to the contrary.) Bormuth only raises “subtle coercive pressures” which do not

remotely approach rising to “actual legal coercion.” 134 S. Ct. at 1838 (Thomas, J., concurring

in part and in the judgment). This resolves the issue in the County’s favor.

B.

Furthermore, even if Part II-B of Justice Kennedy’s opinion were precedent, it does not

change the result in the present case. Under Justice Kennedy’s proposed rule, we presume that a

“reasonable observer . . . understands that . . . [the] purpose[ of legislative prayer is] . . . to lend

gravity to public proceedings and to acknowledge the place religion holds in the lives of many

private citizens, not to afford government an opportunity to proselytize or force truant

constituents into the pews.” Id. at 1825 (Kennedy, J.). That we permit legislative prayer “does

not suggest that those who disagree”—like Bormuth—“are compelled to join the expression or

approve its content”—as Bormuth admits he is not. Id.; see also id. at 1827 (“But in the general

course legislative bodies do not engage in impermissible coercion merely by exposing

constituents to prayer they would rather not hear and in which they need not participate.”).

Whether a legislative prayer practice rises to the level of coercion “remains a fact-sensitive one

that considers both the setting in which the prayer arises and the audience to whom it is

directed.” Id. at 1825; see also Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000)

(“Whether a government activity violates the Establishment Clause is ‘in large part a legal

question to be answered on the basis of judicial interpretation of social facts. Every government

practice must be judged in its unique circumstances.’” (alteration and citation omitted)).

No. 15-1869 Bormuth v. County of Jackson Page 54

1.

I begin with what should always shape our cases: the record on appeal. The majority

relies heavily on a video—a recording of a November 12, 2013, meeting of a subset of the

Board—to draw its conclusions. To be sure, Jackson County records its Board of

Commissioners’ meetings and makes these videos available online on its website.7 However, the

simple fact is that Bormuth did not present this video, or any other, to the district court. One

need look no further than the opinions of the magistrate judge and district judge to confirm these

newly found facts were not presented below. Like the parties’ briefing, those opinions touch

only on the prayers’ content and make no such reference to the videos. Yet, at the suggestion not

by Bormuth, but by Amicus on appeal, the majority has elected to expand the record. By relying

upon these videos, the majority ignores a fundamental appellate principle: we cannot fault a

district court for failing to address facts that were not before it.

“Our review of a district court’s summary-judgment ruling is confined to the record.”

E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 765 (6th Cir. 2015) (en banc). Under Rule 56(c), the

opposing party “has an affirmative duty to direct the court’s attention to those specific portions

of the record upon which it seeks to rely to create a genuine issue of material fact.” Chicago

Title Ins., 487 F.3d at 995 (quoting In re Morris, 260 F.3d 654, 665 (6th Cir. 2001)). “This

burden to respond is really an opportunity to assist the court in understanding the facts. But if

the non-moving party fails to discharge that burden—for example, by remaining silent—its

opportunity is waived and its case wagered.” Guarino v. Brookfield Twp. Trs., 980 F.2d 399,

405 (6th Cir. 1992). Simply stated, we “will not entertain on appeal factual recitations not

presented to the district court when reviewing a district court’s decision.” Chicago Title Ins.

Corp., 487 F.3d at 995 (internal citation omitted); cf. United States v. Crumpton, 824 F.3d 593,

614 n.6 (6th Cir. 2016) (Moore, J.) (declining to consider a video introduced at trial and played

for the jury in part because “[t]he video was not made part of the district court’s record”). And

this rule applies even if an appellant proffers evidence “that might . . . show a genuine issue of

material fact after the district court had granted the defendants’ motion for summary judgment.”

Cacevic v. City of Hazel Park, 226 F.3d 483, 491 (6th Cir. 2000).

7

https://www.co.jackson mi.us/1673/Board-of-Commissioners

No. 15-1869 Bormuth v. County of Jackson Page 55

The majority opinion wholly ignores this well-established appellate principle, burying a

footnote toward the end of its opinion stating that the videos were “part of the record before the

district court.” Its only plausible support for this assertion is that Bormuth’s Amended

Complaint averred that “[t]he County commissioners meetings are video recorded and posted on

the Jackson County website: www.co.jackson.mi.us,” and that a transcription of the offered

prayers attached to his motion for summary judgment also referenced the videos’ availability. In

my view, the mere reference to the videos’ general availability falls well short of “direct[ing] the

court’s attention to those specific portions of the record upon which [Bormuth sought] to rely to

create a genuine issue of material fact.” Chicago Title Ins. Corp., 487 F.3d at 995. But in the

majority’s view, such fleeting references somehow required the district court to spend countless

hours litigating on Bormuth’s behalf in response to Jackson County’s motion for summary

judgment by: (1) surfing the County’s website to find the archive of the meetings; (2) watching

the several years’ worth of monthly meetings (and as but one example, the November 12, 2013,

Personnel & Finance Committee meeting alone lasted over one hour); and (3) finding facts

supporting Bormuth’s claim. We never require such advocacy by a district court, whether it be

for a pro se litigant like Mr. Bormuth, or otherwise. See, e.g., Guarino, 980 F.2d at 410 (a

district court is not obligated to “comb the record from the partisan perspective of an advocate

for the non-moving party”); cf. Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District judges have

no obligation to act as counsel or paralegal to pro se litigants.”).8

There is yet another appellate procedure problem unresolved by the majority opinion.

Outside of repeating the above statement from his Amended Complaint, Bormuth’s appellate

brief is similarly silent with respect to the videos or their content. It is only in his reply on

appeal—i.e., after reviewing Amicus’s briefing raising these additional materials—that he first

referenced the videos and made an argument regarding the new facts contained therein.

“We have consistently held, however, that arguments made to us for the first time in a reply brief

8

The majority also relies upon Bormuth’s response to Jackson County’s motion for summary judgment, but

that response makes no reference to the videos or their express content. Noticeably absent are the statements

referenced by the majority regarding controlling prayer content, the content of other meetings, and calling Bormuth

a “nitwit.” Finally, the majority incorrectly states Jackson County admitted at oral argument that the videos were

part of the “official record” before the district court. Rather, counsel stated the videos were part of the County’s

official public records.

No. 15-1869 Bormuth v. County of Jackson Page 56

are waived.” Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 2010). “[W]here the facts relied

upon were presented neither to the district court nor to this Court until Plaintiff Appellant filed

his reply, it would be improper for the Court to find that the district court erred in its failure to

consider this newly-developed . . . argument,” Overstreet, 305 F.3d at 578, especially, as it is

here, “when the issue raised for the first time in reply is based largely on the facts and

circumstances of the case.” Wright v. Holbrook, 794 F.2d 1152, 1156 (6th Cir. 1986).

The problem becomes magnified when considering the majority’s irreconcilable decision

to use these new facts, but yet rightfully rejects Amicus’s argument regarding prayer purpose

(based upon yet another video) because Bormuth did not raise that argument below or in his

appellate brief. There is no difference between this newly raised argument based on evidence

not presented to the district court that the majority rejects, and the newly raised argument based

on evidence not presented to the district court that the majority accepts. This dichotomy is

unexplainable.

Based upon its expanded record, the majority concludes Jackson County’s prayer practice

is coercive under Justice Kennedy’s test. I respectfully disagree.

2.

In this regard, I concur with District Judge Marianne O. Battani’s ruling that Jackson

County’s invocation practice is not coercive:

The Court is not persuaded that the legislative prayer at issue here is unduly

coercive based on the identity of the prayer-giver. As a practical matter,

nonadherents had several options available to them: leave for the duration of the

prayer; remain for the prayer without rising; or remain for the prayer while rising,

in which case their acquiescence would not have been interpreted as agreement

with the religious sentiments. It is not clear that the direction to “Please rise”

carries more coercive weight when voiced by the Commissioners themselves than

by a guest chaplain selected by the Board of Commissioners. Although

nonadherents to Christianity such as Bormuth may fear that their business before

the Board would be prejudiced if the Commissioners observed their

noncompliance with the request to stand, the risk of prejudice is no greater if the

request is delivered by a Commissioner than if it is delivered by a guest chaplain.

In both situations, the Commissioners are equally capable of observing those who

comply and those who do not. The language in Greece regarding requests to

participate in prayer being made by legislators does not provide clear guidance on

No. 15-1869 Bormuth v. County of Jackson Page 57

the outcome of this case—it is dicta contained in a plurality opinion and is

therefore not binding. Additionally, the opinion states merely that “[t]he analysis

would be different,” not that the outcome would be different had the instruction to

rise been delivered by one of the legislators. Bormuth’s attestation that two

Commissioners turned their backs to him during his presentations, while evidence

of disrespect, does not demonstrate that the Board was prejudiced against him

because he declined to participate in the prayer—rather, their behavior is likely an

unfortunate expression of their own personal sense of affront elicited by his

sentiments.

***

[I]f the Court determined that the constitutionality of a legislative prayer is

predicated on the identity of the speaker, potentially absurd results would ensue.

Under such a holding, an invocation delivered in one county by a guest minister

would be upheld, while the identical invocation delivered in another county by

one of the legislators would be struck down. In light of these considerations, the

Court finds that the present legislative prayer practice is not coercive.

3.

My colleagues rule to the contrary, concluding that we must view coercion differently

from prayers at legislative sessions because local government meetings are small, intimate, and

often involve citizens “address[ing] issues immediately affecting lives.” To be sure, this

difference was at the core of an opinion in Town of Greece: Justice Kagan’s dissent. 134 S. Ct.

at 1851–52 (Kagan, J., dissenting) (“The majority thus gives short shrift to the gap—more like,

the chasm—between a legislative floor session involving only elected officials and a town hall

revolving around ordinary citizens.”). However, the five Justices in the Town of Greece majority

did not adopt these distinctions. For this reason, my colleagues err in finding hypothetical

coercion because “residents would not want to offend the local government officials they are

petitioning.”

The majority opinion in the present case also makes much of the fact that Commissioners

asked audience members to stand and assume a reverent position before giving the prayers. This

point of distinction from Town of Greece leads my colleagues to rely upon this passage from Part

II-B of Justice Kennedy’s opinion:

The analysis would be different if town board members directed the public to

participate in the prayers, singled out dissidents for opprobrium, or indicated that

No. 15-1869 Bormuth v. County of Jackson Page 58

their decisions might be influenced by a person’s acquiescence in the prayer

opportunity. . . . Although board members themselves stood, bowed their heads,

or made the sign of the cross during the prayer, they at no point solicited similar

gestures by the public. Respondents point to several occasions where audience

members were asked to rise for the prayer. These requests, however, came not

from town leaders but from the guest ministers, who presumably are accustomed

to directing their congregations in this way and might have done so thinking the

action was inclusive, not coercive.

Id. at 1826 (Kennedy, J.). The analytical fallacy of focusing on this list of distinctions is that it

ignores that “[o]ur tradition assumes that adult citizens, firm in their own beliefs, can tolerate and

perhaps appreciate a ceremonial prayer delivered by a person of a different faith”; and that a

reasonable person understands that the purpose of legislative prayer is “to lend gravity to public

proceedings and to acknowledge the place religion holds in the lives of many private citizens, not

to afford government an opportunity to proselytize or force truant constituents into the pews.”

Id. at 1823, 1825. Bluntly, “[t]hat many appreciate these acknowledgments of the divine in our

public institutions does not suggest that those who disagree are compelled to join the expression

or approve its content.” Id. at 1825. As the district court stated, “[a]lthough nonadherents to

Christianity such as Bormuth may fear that their business before the Board would be prejudiced

if the Commissioners observed their noncompliance with the request to stand, the risk of

prejudice is no greater if the request is delivered by a Commissioner than if it is delivered by a

guest chaplain. In both situations, the Commissioners are equally capable of observing those

who comply and those who do not.” The majority’s application thus flips Justice Kennedy’s

presumption against Jackson County, not in its favor.

And more importantly, just as in Town of Greece, “[n]othing in the record suggests that

members of the public are dissuaded from leaving the meeting room during the prayer, arriving

late, or even, as happened here, making a later protest.” Id. at 1827. (Commissioner Rice even

suggested as much.) Bormuth admits that he refused to stand for the prayers and his “quiet

acquiescence [should] not, in light of our traditions, be interpreted as an agreement with the

words or ideas expressed.” Id. On this record, I refuse to equate these “commonplace” and

“reflexive” requests as mandating prayer participation. Id. at 1832 (Alito, J., concurring)

(noting, among other things, that the words “Let us pray” are “commonplace” and “reflexive”).

No. 15-1869 Bormuth v. County of Jackson Page 59

There is also nothing in the record indicating that the Commissioners treated Bormuth

differently on account of his complaints regarding the prayer practice. That record is: two

Commissioner’s comments regarding the draft prayer policy, and one turning his back on

Bormuth when he criticized the sectarian prayer practice.9 On the former, the statements

discussing “attacks” on Jesus Christ and the Commissioners are in the context of an individual’s

right to offer a prayer of his or her faith, without preclearance by “an administrator or judge”:

“Bormuth is attacking us and, from my perspective, my Lord and savior Jesus Christ. Our civil

liberties should not be taken away from us, as Commissioners”; “We Commissioners, as

individuals, have a right to pray as we believe”; and “What about my rights?” See id. at 1823.

And on the latter, I agree with the district court that however uncourteous, a Commissioner

turning his back to Bormuth one time certainly does not constitute “strong criticism or

disapproval.” Opprobrium, Black’s Law Dictionary (10th ed. 2014).

That leaves us with the majority opinion’s final conclusion: Jackson County allocated

benefits and burdens due to Bormuth’s objection to its prayer practice by not appointing him to

the Solid Waste Planning Committee or the Board of Public Works. Taking the facts that were

properly before the district court (including those proposed in Bormuth’s second motion to

supplement),10 I do not agree.

Beyond a template rejection letter, we know nothing about why Jackson County rejected

Bormuth’s application to fill a vacancy on the Solid Waste Planning Committee. All we have

are unverified assertions from his complaint. But in order to defeat Jackson County’s motion for

summary judgment, Bormuth was required to go “beyond the pleadings” and “do more than

simply show that there is some metaphysical doubt as to material facts to survive summary

9

Citing comments from the November 12, 2013, Personnel & Finance Committee meeting, the majority

concludes Jackson County singled Bormuth out for opprobrium. These c

This text is long and has been trimmed here. Open the source document for the complete record.