Peter Bormuth v. County of Jackson

RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 17a0207p.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: June 14, 2017

Decided and Filed: September 6, 2017

Before: COLE, Chief Judge; BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS,

SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD,

and THAPAR, Circuit Judges.*

_________________

COUNSEL

ARGUED EN BANC: Peter Bormuth, Jackson, Michigan, pro se. Allyson N. Ho, MORGAN,

LEWIS & BOCKIUS LLP, Dallas, Texas, for Appellee. Richard B. Katskee, AMERICANS

UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C., Aaron D.

Lindstrom, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for

Amici Curiae. ON BRIEF: Peter Bormuth, Jackson, Michigan, pro se. Allyson N. Ho, John C.

Sullivan, MORGAN, LEWIS & BOCKIUS LLP, Dallas, Texas, Judd E. Stone, Michael E.

Kenneally, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., Hiram S. Sasser, III,

Kenneth A. Klukowski, FIRST LIBERTY INSTITUTE, Plano, Texas, Richard D. McNulty,

COHL, STOKER & TOSKEY, Lansing, Michigan, for Appellee. Richard B. Katskee,

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C.,

*

The clerk submitted this case to the en banc panel of the Sixth Circuit Court of Appeals before Judge John

K. Bush received his commission on August 31, 2017.

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

Daniel Mach, Heather L. Weaver, AMERICAN CIVIL LIBERTIES UNION FOUNDATION,

Washington, D.C., Daniel S. Korobkin, Michael J. Steinberg, AMERICAN CIVIL LIBERTIES

UNION FUND OF MICHIGAN, Detroit, Michigan, Aaron D. Lindstrom, OFFICE OF THE

MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Michael B. Kimberly, MAYER

BROWN LLP, Washington, D.C., Ed R. Haden, Jason B. Tompkins, Michael P. Taunton,

BALCH & BINGHAM LLP, Birmingham, Alabama, Eric C. Rassbach, Daniel H. Blomberg,

THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., Benjamin L. Ellison,

DORSEY & WHITNEY LLP, Wayzata, Minnesota, Bryan H. Beauman, STURGILL, TURNER,

BARKER & MOLONEY, PLLC, Lexington, Kentucky, Eric D. McArthur, Benjamin Beaton,

SIDLEY AUSTIN LLP, Washington, D.C., Edward L. White III, AMERICAN CENTER FOR

LAW & JUSTICE, Ann Arbor, Michigan, Douglas R. Cox, GIBSON, DUNN & CRUTCHER

LLP, Washington, D.C., for Amici Curiae.

GRIFFIN, J., delivered the opinion of the court in which BATCHELDER, GIBBONS,

ROGERS, SUTTON, COOK, McKEAGUE, KETHLEDGE, and THAPAR, joined. ROGERS,

J. (pp. 34–36), delivered a separate concurring opinion in which COOK and McKEAGUE, JJ.,

joined. SUTTON, J. (pp. 37–43), delivered a separate concurring opinion in which

BATCHELDER, McKEAGUE, KETHLEDGE, and THAPAR, JJ., joined. MOORE, J. (pp. 44–

71), delivered a separate dissenting opinion in which COLE, C.J., and CLAY, STRANCH, and

DONALD, JJ., joined, and WHITE, J., joined in part. WHITE, J. (pp. 72–73), delivered a

separate dissenting opinion.

_________________

OPINION

_________________

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

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

Consonant with this historical practice, defendant Jackson County Board of Commissioners

opens its public meetings with a prayer that is generally solemn, respectful, and reflective.

Plaintiff Peter Bormuth claims that this custom violates the Establishment Clause of the United

States Constitution1 because the Commissioners themselves offer the invocations. We disagree

and affirm the judgment of the district court.

In doing so, we hold that Jackson County’s invocation practice is consistent with the

Supreme Court’s legislative prayer decisions, Marsh v. Chambers, 463 U.S. 783 (1983), and

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 Twp., 330 U.S. 1 (1947).

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

Town of Greece v. Galloway, 134 S. Ct. 1811 (2014), and does not violate the Establishment

Clause.

I.

A.

The Jackson County Board of Commissioners is an elected board of nine individuals that

represents the citizens of Jackson County, Michigan. The Board opens its monthly meetings

with Commissioner-led prayers. Following a call to order, the Board’s Chairman typically

requests Commissioners and the public alike to please “rise and assume a reverent position.”

Other variations include: “Everyone please stand. Please bow your heads”; “Please bow your

heads and let us pray”; and “If everyone could stand and please take a reverent stance.” One of

the Commissioners then offers a prayer, which is followed by the Pledge of Allegiance, and then

county business.

The Board’s invocation practice is facially neutral regarding religion. On a rotating

basis, each elected Jackson County Commissioner, regardless of his 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 Board as a whole, review or approve the

content of the invocations. There is no evidence that the Board adopted this practice with any

discriminatory intent.

Prayers offered by the Commissioners are generally Christian in tone and often ask

“God,” “Lord,” or “Heavenly Father” to provide the Commissioners with guidance as they go

about their business. Some prayers ask for blessings for others, from county residents suffering

particular hardships, to military members, first responders serving in Jackson County, and others.

The following is illustrative of the prayers at issue:

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

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

take them through difficult times. We ask these things in your son Jesus’s name.

Amen.

Plaintiff, a “self-professed Pagan and Animist,” objects to this practice. In his words, the

“prayers are unwelcome and severely offensive to [him] as a believer in the Pagan religion,

which was destroyed by followers of Jesus Christ.” The distinctly Christian prayers offered by

the Commissioners make him feel “like he [i]s in Church” and that “he [i]s being forced to

worship Jesus Christ in order to participate in the business of County Government.” He admits,

however, that he does not stand and participate in the invocation portion of the meetings. Nor

does he contend that the Commissioners dissuaded or attempted to dissuade him, or any other

member of the public, from leaving the meeting during the prayer, arriving late, or protesting the

practice after the fact.

And protest after the fact he did. Bormuth first raised his concerns about the invocations

during a public comment portion of an August 20, 2013, meeting. While Bormuth was speaking

“on the issue of their sectarian prayers,” one of the Commissioners “swiveled his chair and

turned his back to [Bormuth].” This “insulted and offended” him.

Bormuth commenced this litigation on August 30, 2013. A month later, he sought

appointment to Jackson County’s Solid Waste Planning Committee. According to Bormuth’s

Amended Complaint, the Board appointed two other lesser-qualified individuals instead.

Bormuth moved for summary judgment in December 2013. Following the Supreme

Court’s May 2014 decision in Town of Greece and while plaintiff’s motion was pending, Jackson

County moved for summary judgment. Thereafter, the magistrate judge directed Bormuth to file

a revised motion addressing Town of Greece. He did so in September 2014.

Ultimately, the magistrate judge issued a report and recommendation granting Bormuth’s

motion for summary judgment, denying Jackson County’s motion for summary judgment, and

enjoining Jackson County’s invocation practice as violative of the Establishment Clause.

However, the district court rejected this portion of the magistrate’s report and recommendation

and found Jackson County’s prayer practice to be consistent with the Supreme Court’s holdings

in Marsh and Town of Greece. Bormuth appealed, claiming that the district court erred in

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

concluding Jackson County’s prayer practice does not violate the Establishment Clause and

abused its discretion regarding two discovery matters. On appeal, a panel of our court ruled in

Bormuth’s favor on his Establishment Clause challenge. Bormuth v. Cty. of Jackson, 849 F.3d

266 (6th Cir. 2017). Thereafter, we sua sponte granted rehearing en banc. 855 F.3d 694 (6th

Cir. 2017) (mem.).

B.

Before turning to the merits of the appeal, we pause to address why our factual recitation

excludes certain statements made by Commissioners after Bormuth commenced this litigation

(and in particular, during a November 12, 2013, meeting of a subset of the Board to review a

proposed revised invocation practice in response to Bormuth’s lawsuit—a proposal which was

ultimately tabled). Both Bormuth and Amicus Americans United for Separation of Church and

State argue that because Jackson County records by video its Board of Commissioners’ meetings

and makes these videos available online on its website, the videos are either in the record or are

judicially noticeable for purposes of this appeal. We disagree, and refuse to fault the 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 Federal Rule of

Civil Procedure 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. Corp. v. Magnuson, 487 F.3d 985, 995 (6th Cir. 2007)

(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). 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).

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

Bormuth did not present any video evidence to the district court. One need look no

further than the opinions of the magistrate judge and district judge to confirm this. Like the

parties’ briefing below, those opinions make no reference to the videos.

We acknowledge 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 referred to the videos’ availability. In our 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 (citation omitted). Such a fleeting

nonspecific reference did not require the district court to spend countless hours looking for

evidence 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, meeting

alone lasted over one hour); and (3) attempting to discover facts supporting Bormuth’s claim.

We have never required such advocacy by a district court, even for a pro se litigant. 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.”).

Furthermore, the manner in which this appeal was briefed is another reason to decline the

invitation to supplement the appellate record. Bormuth’s initial appellate brief was silent with

respect to the videos or their content. It was only in his reply at the panel stage 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 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 v. Lexington-Fayette Urban Cty. Gov’t,

305 F.3d 566, 578 (6th Cir. 2002), especially, as it is here, “when the issue raised for the first

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

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 same goes for Amicus’s attempt to raise

this argument. See Cellnet Commc’ns, Inc. v. F.C.C., 149 F.3d 429, 443 (6th Cir. 1998) (“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.”).

That leaves us with Bormuth’s and Amicus Americans United’s requests that we take

judicial notice of the videos under Federal Rule of Evidence 201. Because Jackson County

admitted the accuracy of these publicly-available videos, the argument is made that this court

“must take judicial notice,” because the facts within the videos “can be accurately and readily

determined from sources whose accuracy cannot reasonably be questioned,” and the court has

been “supplied with the necessary information.” Further, the court “may take judicial notice at

any stage of the proceeding.” Fed. R. Evid. 201.

Admittedly, there is some tension between these judicial notice procedures and our

voluminous case law providing that “[o]ur function is to review the case presented to the district

court, rather than a better case fashioned after a district court’s unfavorable order.”

DaimlerChrysler Corp. Healthcare Benefits Plan v. Durden, 448 F.3d 918, 922 (6th Cir. 2006);

cf. Sovereign News Co. v. United States, 690 F.2d 569, 571 (6th Cir. 1982) (“A party may not

by-pass the fact-finding process of the lower court and introduce new facts in its brief on

appeal.”). However, our court recently and persuasively addressed this tension as follows:

The problem is that taking judicial notice of . . . [new evidence] now might create

an evidentiary loophole through which a litigant could present a district court with

one record and then ask an appellate court to reverse the district court based on

another record. That would subvert the relationship between district and appellate

courts. Here, the district court considered and rejected the defendants’ . . .

arguments. Now the defendants and amici urge reversal based in part upon facts

that the defendants could have presented to the district court, but chose not to.

They are not entitled to burnish the record on appeal. See Morgan Drexen, Inc. v.

Consumer Fin. Prot. Bureau, 785 F.3d 684, 690 n.2 (D.C. Cir. 2015); U.S. ex rel.

Wilkins v. United Health Grp., 659 F.3d 295, 303 (3d Cir. 2011).

United States v. Carpenter, No. 14-1572, Order at 2 (6th Cir. April 11, 2016); see also Conlin v.

Mort. Ele. Registration Sys., Inc., 714 F.3d 355, 360 n.5 (6th Cir. 2013); United States v. Bonds,

12 F.3d 540, 552–53 (6th Cir. 1993).

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

For these reasons, we decline to consider the videos presented for the first time on appeal

by amicus, and then by Bormuth in his reply.2

C.

There is one more preliminary matter to resolve at the outset, relating to a discovery

issue.3 After Bormuth moved for summary judgment, he sought to depose the County’s

Administrator and three Commissioners. In his Rule 26 disclosures, Bormuth identified these

individuals as possessing information regarding “the County Commissioner’s practice of offering

a prayer invocation at the opening of their regular monthly meetings,” “the practice of having

children lead the Pledge of Allegiance which directly follows the invocation on the agenda,” and

“Plaintiff’s activities regarding the Jackson County Resource Recovery Facility.” He further

explained his desire to take these depositions in response to Jackson County’s motion to quash,

noting he wanted to discover “the practice, intent, and history of the invocations, [County

Administrator] Overton’s proposed [revised invocation] policy, and the role that religious

interest and bias from the Commissioners has played in this case.” The magistrate judge granted

the motion to quash because of the pending cross-motions for summary judgment. That is,

Bormuth did “not indicate[] the need for any additional discovery in order to fully respond to

defendant’s motion or to support his own motion as required by Federal Rule of Civil Procedure

56(d).” The district court agreed to quash the scheduled depositions for different reasons: under

Town of Greece, “the Commissioners’ private and personal attitudes toward religion or

nonreligion are not relevant to the present action.” It also ruled that to the extent he sought

information about the Jackson County Resource Recovery Facility, it was irrelevant because

Bormuth alleged an Establishment Clause claim, not an employment discrimination claim.

We review district court decisions regarding discovery matters for abuse of discretion.

See Himes v. United States, 645 F.3d 771, 782 (6th Cir. 2011). A district court abuses its

2

We note that even if we were to consider the proffered videos, our disposition would not change.

3

Bormuth also contends the district court erred by not permitting him to supplement the record with respect

to the decision by the Board to not appoint him to a vacancy on the Board of Public Works. We address this claim

of error in our text below.

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

discretion when it relies on clearly erroneous findings of fact, improperly applies the law, or uses

an erroneous legal standard. Cummins v. BIC USA, Inc., 727 F.3d 506, 509–10 (6th Cir. 2013).

We conclude that the district court did not abuse its discretion because Bormuth failed to

comply with Federal Rule of Civil Procedure 56(d). As the magistrate judge correctly

recognized, Bormuth did not assert his need to take these depositions in response to Jackson

County’s motion for summary judgment. Under Rule 56(d), Bormuth could have opposed this

motion on the grounds that he could not “present facts essential to justify its opposition.” “We

have observed that filing an affidavit that complies with Rule 56(d) is essential, and that in the

absence of such a motion or affidavit, ‘this court will not normally address whether there was

adequate time for discovery.’” Unan v. Lyon, 853 F.3d 279, 292 (6th Cir. 2017) (citation

omitted). Although we have set aside Rule 56(d)’s formal affidavit requirement “when a party

has clearly explained its need for more discovery on a particular topic to the district court prior to

or contemporaneously with the motion for summary judgment,” id. at 293 (citation omitted),

there is no need to do so here.

By twice moving for summary judgment, Bormuth conceded his position “that there

[wa]s no genuine dispute as to any material fact and that . . . [he wa]s entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). Thus, instead of responding to Jackson County’s motion

for summary judgment by arguing the need for additional discovery, Bormuth’s motions for

summary judgment expressly disclaimed it. See Unan, 853 F.3d at 293 (finding no abuse of

discretion where, despite plaintiff’s providing of some evidence about the need for additional

discovery, the plaintiff subsequently moved for summary judgment). We therefore decline to

sanction the “I did not have all the evidence I needed” argument made for the first time

following the district court’s adverse ruling on the cross-motions for summary judgment.

II.

We review the district court’s grant of summary judgment de novo. Rogers v.

O’Donnell, 737 F.3d 1026, 1030 (6th Cir. 2013). Summary judgment is proper when there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a). Although we view the evidence in a light most favorable to the

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

nonmovant, Rogers, 737 F.3d at 1030, “the plain language of Rule 56[] mandates the entry of

summary judgment . . . against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

III.

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

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; see also Smith v. Jefferson Cty. Bd. of Sch. Comm’rs,

788 F.3d 580, 588 (6th Cir. 2015) (“At the state and local levels, too, legislative prayer has long

been accepted.” (citing Town of Greece, 134 S. Ct. at 1819)). Indeed, “the 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.). 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 (Majority Op.). With this historical grounding, it comes as no surprise that the Supreme

Court has twice approved the practice of legislative prayer as consistent with the Framers’

understanding of the Establishment Clause. Because these cases shape our inquiry, we examine

Marsh and Town of Greece in detail.

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

A.

The Supreme Court first rejected an Establishment Clause challenge to legislative prayer

in Marsh. That case examined the Nebraska Legislature’s practice of opening its sessions with a

prayer by its chaplain. The salient facts of Nebraska’s practice included that the chaplain was of

only one denomination (Presbyterian); the Legislature selected the chaplain for sixteen

consecutive years and paid him with public funds; and the chaplain gave prayers “in the Judeo-

Christian tradition.” 463 U.S. at 793.

In rejecting the claim that Nebraska’s invocation practice violated the Establishment

Clause, the Supreme Court emphasized legislative prayer’s deep historical roots: “From colonial

times through the founding of the Republic and ever since, the practice of legislative prayer has

coexisted with the principles of disestablishment and religious freedom.” Id. at 786. Notable to

the Court was how the drafters of the Establishment Clause embraced this practice. In 1774, the

Continental Congress “adopted the traditional procedure of opening its session with a prayer

offered by a paid chaplain.” Id. at 787. And in one of its “early items of business,” the First

Congress “adopted the policy of selecting a chaplain to open each session with prayer” and

“authorized the appointment of paid chaplains” just three days before it approved the language of

the First Amendment. Id. at 787–88.

Based on this “unique,” “unambiguous and unbroken history,” the Court held that “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. Stated a different way, “[c]learly 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.

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

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

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 . . . 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.

B.

Marsh is widely viewed as “carving out an exception to the [Supreme] 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.” Town of

Greece, 134 S. Ct. at 1818 (citation and quotation marks 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); accord Smith, 788 F.3d at 589–90.

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 (internal citations omitted). 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

ceremonial prayer turned upon content neutrality. See Stein v. Plainwell Cmty. Sch., 822 F.2d

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

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.

C.

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 that legislative prayers be “inclusive and ecumenical” to a

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

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

Establishment Clause, the Supreme Court again emphasized 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. at 1823. 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. This tradition extends not just to state and federal legislatures, but also to

local deliberative bodies like city councils. Id. at 1819; see also Am. Humanist Ass’n v.

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

McCarty, 851 F.3d 521, 527 (5th Cir. 2017) (applying Town of Greece to prayers before school

boards).4

Accordingly, the Supreme Court in Town of Greece directed that a court’s “inquiry . . .

must be to determine whether the prayer practice [at issue] fits within the tradition long followed

in Congress and the state legislatures,” and held that Greece’s did. 134 S. Ct. at 1819. 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 revolved 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). 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 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 to the prayers’ content to fit within our historical tradition:

The relevant constraint derives from its place at the opening of legislative

sessions, where it is meant to lend gravity to the occasion and reflect values long

part of the Nation’s heritage. Prayer that is solemn and respectful in tone, that

invites lawmakers to reflect upon shared ideals and common ends before they

embark on the fractious business of governing, serves that legitimate function. 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.

4

In our pre-Town of Greece case law, we refused to apply Marsh’s historical analysis to prayers offered

before public school boards and instead applied Lemon’s endorsement test in line with public school prayer cases.

See Coles ex rel. Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 379–83 (6th Cir. 1999). Because the issue is not

before us, now is not the time to decide whether Coles is still viable post-Town of Greece.

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

***

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” such as celebrating the changing of the

seasons or calling for a “spirit of cooperation.” Id. To be sure, some prayers strayed from 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. (quotation marks 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 claim 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

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

achieve religious balancing.” Id.

Next, the Supreme Court addressed the petitioner’s claim “that the setting and conduct of

the town board meetings create social pressures that force nonadherents to remain in the room or

even feign participation in order to avoid offending the representatives who sponsor the prayer

and will vote on matters citizens bring before the board.” Id. at 1820.

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

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,” and “must be

evaluated against the backdrop of historical practice.” Id. at 1825. (Kennedy, J.). Notably,

Justice Kennedy applied the following presumption: “the reasonable observer is acquainted with

this tradition and understands that [legislative prayer’s] 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.

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

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

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 (citations omitted). 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

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). Therefore, they rejected Justice Kennedy’s broadening of coercion to also include

social pressures:

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

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).

IV.

Our first inquiry is “to determine whether the prayer practice in [Jackson County] fits

within the tradition long followed in Congress and the state legislatures.” Id. at 1819 (Majority

Op.). We hold that it does.5

A.

At the heart of this appeal is whether Jackson County’s prayer practice falls outside our

historically accepted traditions because the Commissioners themselves, not chaplains, or invited

community members, lead the invocations. Bormuth contends legislator-led prayer is per se

unconstitutional, and “[b]ecause each Commissioner is Christian . . . , every prayer offered has

been Christian” and therefore the Jackson County Board of Commissioners is endorsing the

Christian faith. We reject this narrow reading of the Supreme Court’s legislative-prayer

jurisprudence and our history.

5

We recognize our view regarding Jackson County’s invocation practice is in conflict with the Fourth

Circuit’s recent en banc decision. See Lund v. Rowan Cty., 863 F.3d 268 (4th Cir. 2017) (en banc). However, for

the reasons stated in the text of this opinion, and as more fully explained by the dissenting judges in Lund, see id. at

296–300 (Niemeyer, J., dissenting) and id. at 301–323 (Agee, J., dissenting), we find the Fourth Circuit’s majority

en banc opinion unpersuasive.

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

1.

There is no support for Bormuth’s granular view of legislative prayer. In this regard,

neither Marsh nor Town of Greece restricts who may give prayers in order to be consistent with

historical practice. In Marsh, for example, the Supreme Court separately listed “paid legislative

chaplains and opening prayers” as consistent with the Framers’ understanding of the

Establishment Clause. 463 U.S. at 788 (emphasis added). And Town of Greece made clear that

we are to focus upon “the prayer opportunity as a whole” in light of “historical practices and

understandings.” 134 S. Ct. at 1819, 1824 (citation omitted).

Most significantly, history shows that legislator-led prayer is a long-standing tradition.

Before the founding of our Republic, legislators offered prayers to commence legislative

sessions. See, e.g., American Archives, Documents of the American Revolutionary Period,

1774-76, v1:1112 (documenting legislator-led prayer in South Carolina’s legislature in 1775);

see also Town of Greece, 134 S. Ct. at 1833 (Alito, J., concurring); cf. 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.”). Legislator-led prayer has

persisted in various state capitals since at least 1849.6 See Brief of Amici Curiae State of

Michigan and Twenty-One Other States, at 5–6; Brief of Amici Curiae Local and State

Legislators and the Commonwealth of Kentucky, at 5–9; Brief of Amici Curiae Members of

Congress, at 4. Indeed, the Michigan House of Representatives and Senate sit just north of

Jackson County and have documented legislator-led prayer examples dating back at least to 1879

6

As but one substantive example, consider the following prayer offered by a delegate to Illinois’s

Constitutional Convention on January 12, 1870, which is not unlike the many prayers offered by the Jackson County

Commissioners:

Almighty God, our Heavenly Father! We recognize Thee as the great Sovereign of the Universe;

the Father of our spirits; the Framer of our bodies; the Author of our life, and the Giver of every

blessing and comfort that makes life desirable. We thank Thee for the kind care Thou hast

exercised over us during the last night. We thank Thee for the blessing of this morning; and we

pray Thee, Heavenly Father, that Thy blessing may rest upon us as a Convention, during this day;

that we may be wise in our conduct; that we may have reference to the Divine Glory, and regard

for the best interests of all who shall be affected by our action, in all we may do. Give us not only

a sense of our dependence upon Thee, but give us all necessary wisdom and grace, that we may

discharge our duties so that the result shall be conducive to the good of all concerned. We ask in

the name of Christ, our Great Redeemer. Amen.

State of Illinois, Debates and Proceedings of the Constitutional Convention of 1869, at 166.

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

and 1898, respectively. See H.R. Journal, at 10, 82, 591, 956 (Mich. 1879) (prayers by

representatives); S. Journal, Extra Sess., at 180 (Mich. 1898) (prayer by senator).7

These historical examples are consistent with those relied upon by the Supreme Court to

find traditions of legislative prayer in Marsh and Town of Greece. Nebraska’s legislature, noted

the Court in Marsh, paid a chaplain since at least 1867. 463 U.S. at 794. The same is true for

Town of Greece, where the Court extended Marsh from state capitals to town halls by way of one

prayer offered before the City Counsel of Boston in 1910. 134 S. Ct. at 1819. Amici’s helpful

identification of the historical breadth of legislator-led prayer in the state capitals for over one

hundred fifty years more than confirms to us that our history embraces prayers by legislators as

part of the “benign acknowledgment of religion’s role in society.” Id. Accordingly, we give no

credence to Bormuth’s contention that these examples are just “historical aberrations.” The same

can be said for the Fourth Circuit’s conclusion in Lund that legislator-led prayer is a

“phenomenon [that] appears to be the exception to the rule,” 863 F.3d at 279, especially because

that court apparently did not consider the numerous examples of such prayers presented to us.

As reflected in Marsh and Town of Greece, this history of legislators leading prayers is

uninterrupted and continues in modern time. Take Marsh’s conclusion that “the practice of

opening sessions with prayer . . . has also been followed consistently in most of the states.”

463 U.S. at 788–89. 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 789 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).

7

Bormuth suggests these examples do not show a tradition of legislator-led prayer because some “involve

prayers led by legislators who were also ministers” and moves that we take notice of these—and other—alleged

historical nuances. We find no appreciable difference between prayers by ordained legislators and those legislators

who are not, for both reflect prayers given in a capacity as a legislator. Nonetheless, we grant Bormuth’s motion,

Dkt. #120, which we view as a response to the historical record submitted by the Amici.

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

The record in Town of Greece also shows the long-standing practice of legislator-led

prayer has continued to today. Observe the prayer offered by one of Greece’s councilmen (and

one that is quite similar to the prayers offered here):

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 silent prayers, 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.

Here, Jackson County presented a 2002 NCSL study reinforcing the earlier conclusion

cited in Marsh 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 Aug. 15, 2017) (listing guest chaplains “who have been

recommended by the Members of Congress”); Sen. Robert C. Byrd, Senate Chaplain, in 2 The

Senate, 1789-1989, Addresses on the History of the United States Senate 297, 305 (1982); see

also Brief of Amici Curiae State of Michigan and Twenty-One Other States, at 10–12 (listing

over 100 counties within the Sixth Circuit alone that permit lawmaker-led prayer).

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

This tradition of legislator-led prayer makes sense in light of legislative prayer’s

purpose—it “invites lawmakers to reflect upon shared ideals and common ends before they

embark on the fractious business of governing.” Town of Greece, 134 S. Ct. at 1823. 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 instructs 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 (Majority Op.). We heed this

advice and decline the invitation to find an appreciable difference between legislator-led and

legislator-authorized prayer given its historical pedigree. Put simply, we find it insignificant that

the prayer-givers in this case are publicly-elected officials. In our view and consistent with our

Nation’s historical tradition, prayers by agents (like in Marsh and Town of Greece) are not

constitutionally different from prayers offered by principals. See also Turner v. City Council of

City of Fredericksburg, 534 F.3d 352, 355–56 (4th Cir. 2008) (O’Connor, J., retired) (finding in

a pre-Town of Greece case that opening prayers offered by only city council members were

permissible under the Establishment Clause). The Establishment Clause does not tolerate, much

less require, such mechanical line drawing. See 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.”).

Here, the district court correctly concluded that if “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

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

down.” See also Am. Humanist, 851 F.3d at 529 (“It would be nonsensical to permit legislative

prayers but bar the legislative officers for whom they are being primarily recited from

participating in the prayers in any way.”).

2.

Although the prayers offered before the Board generally espouse the Christian faith, this

does not make the practice incompatable with the Establishment Clause. Quite the opposite, the

content of the prayers at issue here falls within the religious idiom accepted by our Founders.

Consistent with Town of Greece, the solemn and respectful-in-tone prayers demonstrate the

Commissioners permissibly seek guidance to “make good decisions that will be best for

generations to come” and express well-wishes to military and community members. Cf. 134 S.

Ct. at 1823. The prayers “vary in their degree of religiosity” and often “invoke the name of

Jesus, the Heavenly Father, or the Holy Spirit,” but Town of Greece makes clear the Founders

embraced these universal and sectarian references as “particular means to universal ends.” Id. at

1823–24.

Nor do the prayers themselves fall outside Town of Greece’s pertinent constraint on

content—there is no evidence that the “invocations denigrate nonbelievers or religious

minorities, threaten damnation, or preach conversion” or that there is a “pattern of prayers that

over time denigrate, proselytize, or betray an impermissible government purpose.” Id. at 1823,

1824. Bormuth has identified one portion of one prayer where a Commissioner stated, “Bless

the Christians worldwide who seem to be targets of killers and extremists”; he claims this is

evidence of a prayer practice that “denigrates all nonbelievers and minority faiths.” Even

assuming that such a reference “disparage[s] those who did not accept the . . . prayer practice,”

this stray remark does “not despoil a practice that on the whole reflects and embraces our

tradition.” Id. at 1824. One stray remark, we might add, pales in comparison to the litany of

prayers the Fourth Circuit concluded impermissibly advanced Christianity in Lund. 863 F.3d at

284–85 (detailing prayers that “implicitly ‘signaled disfavor toward’ non-Christians,”

“characterized Christianity as ‘the one and only way to salvation,’” “proclaim[ed] that

Christianity is exceptional and suggest[ed] that other faiths are inferior,” and “urged attendees to

embrace Christianity, thereby preaching conversion”) (citations and brackets omitted); but see id.

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

at 313–16 (Agee, J., dissenting) (criticizing majority for condemning prayers similar to those

approved in Marsh and Town of Greece).

That the prayers reflect the individual Commissioners’ religious beliefs does not mean

the Jackson County Board of Commissioners is “endorsing” a particular religion, Christianity or

otherwise. For one, while all the Commissioners presumably believe in Jesus Christ, the faiths

of Christianity are diverse, not monolithic. The Reformation of the Sixteenth Century spawned

an explosion of 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.

We do not know the religious faiths of the 2013-2014 Jackson County Commissioners.

The nine “Christian” Commissioners may have included Roman Catholics, Southern Baptists,

Mormons, Quakers, Episcopalians, Lutherans, Methodists, and others.

Nor do we know the religious faiths of the current Commissioners. But we do know that

Commissioners of different faiths, or no faith, may be elected. 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, or Agnostic (and so on). The religious faiths of 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 elected a Muslim majority city council.8 Were Mr.

Bormuth elected to the Jackson County Board of Commissioners, he could freely begin a

8

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.

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

legislative session with an invocation of his choosing, under the religion-neutral Jackson County

prayer practice.

It is clear from Marsh and Town of Greece that creed-specific prayers alone do not

violate the First Amendment. Specifically, in Marsh, the Supreme Court sanctioned the practice

of selecting the same Presbyterian clergyman for sixteen consecutive years. 463 U.S. at 793.

And in Town of Greece, the Supreme Court instructed that Marsh did not “imply the rule that

prayer violates the Establishment Clause any time it is given in the name of a figure deified by

only one faith or creed.” 134 S. Ct. at 1821. Rather, “[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.’” Id.

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

Thus, in the present case, 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.

This reasoning also aptly applies Town of Greece’s express command that once government

“invites prayer into the public sphere,” it “must permit a prayer giver to address his or her own

God or gods as conscience dictates. . . .” Id. at 1822.

Marsh and Town of Greece do not require Jackson County 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. Under this policy, the Board as a whole cannot be

said to “act as supervisors and censors of religious speech. . . .” Id. at 1822. To the extent the

prayer opportunity in Town of Greece produced prayers by a variety of faiths, we disagree with

the dissent and the Fourth Circuit that Town of Greece’s holding is dependent upon religious

heterogeneity. See Lund, 863 F.3d at 281–82. Its holding on this point is that “[s]o long as the

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

town maintains a policy of nondiscrimination,” the Establishment Clause does not mandate a

municipality of predominately one faith to “achieve religious balancing.” Town of Greece,

134 S. Ct. at 1824. 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). To find otherwise would “require the

[County] to make . . . judgments 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).

Finally, 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)). Were we to agree with our dissenting

colleagues that the prayers by the Jackson County Commissioners run afoul of the Establishment

Clause because the prayer-givers and the government officials are “one and the same” (i.e.,

“excessive entanglement”) and therefore “the Commissioners are effectively endorsing a specific

religion,” we would be rewriting thirty-plus years of Supreme Court jurisprudence—by applying

Lemon’s endorsement rubric in lieu of looking through history’s lens as dictated by Marsh and

Town of Greece.

Neither Marsh nor Town of Greece applies Lemon’s balancing of purposes and

government entanglement when examining the constitutionality of legislative prayer. Rather,

Marsh “carv[ed] 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.” Town of Greece, 134 S. Ct. at 1818 (internal quotation

marks and citation omitted). As we have previously noted en banc before, “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 [Marsh].” Am. Civil Liberties Union of Ohio, 243 F.3d at 305–06.

This omission is made all the more notable by the fact that Justice Brennan expressly advocated

for application of the Lemon-test in dissent, and the lower court opinion applied Lemon. Marsh,

463 U.S. at 797–801 (Brennan, J., dissenting) (discussing “indirect coercive pressure upon

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

religious minorities to conform” in the context of the Lemon test); Chambers v. Marsh, 675 F.2d

228, 233–35 (8th Cir. 1982). Accordingly, we follow the Supreme Court’s precedent and

conclude Lemon’s endorsement test is inapplicable to legislative prayer cases.9 See also

Elmbrook Sch. Dist. v. Doe, 134 S. Ct. 2283, 2284 (2014) (Scalia, J., dissenting from the denial

of certiorari) (“Town of Greece abandoned the antiquated ‘endorsement test.’”); Jones v.

Hamilton Cty. Gov’t, 530 F. App’x 478, 487–88 (6th Cir. 2013) (in pre-Town of Greece case,

stating that “[g]iven the Supreme Court’s choice not to apply Lemon in Marsh, we decline

Appellants’ invitation” to apply Lemon).

B.

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).

In our panel opinion, we were divided regarding whether Justice Kennedy’s three-Justice

plurality opinion or Justice Thomas’s two-Justice concurring opinion controls under Marks on

the question of coercion. Compare Bormuth v. Cty. of Jackson, 849 F.3d 266, 279–81 (6th Cir.

2017) (Moore, J.), with id. at 304–05 (Griffin, J., dissenting).10 Because Bormuth’s challenge

fails under either standard, we need not resolve this issue.

9

Bormuth also claims the 1797 Treaty of Tripoli forbids Jackson County’s practice. We find this argument

meritless and follow the Supreme Court’s instruction to focus on whether the practice “fits within the tradition long

followed in Congress and the state legislatures.” Town of Greece, 134 S. Ct. at 1819. Unrelatedly, we agree with

the district court that Bormuth does not have standing to assert an Establishment Clause violation on behalf of the

children who sometimes lead attendees in the Pledge of Allegiance following the prayer. See Valley Forge

Christian Coll. v. Am. United for Separation of Church & State, Inc., 454 U.S. 464, 489–90 (1982).

10

Writing not for the court, I remain of the view as expressed in my panel dissent that the concurring

opinion of Justice Thomas is narrower on the issue of coercion and therefore controlling. The Supreme Court has

told us that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent

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

1.

First, Justice Kennedy’s opinion. The societal “pressures” exerted upon Bormuth during

the prayers are consistent with those advanced by the petitioners in Town of Greece and rejected

by Justice Kennedy. Under his approach, 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,” and “must be evaluated against the backdrop of

historical practice.” 134 S. Ct. at 1825 (Kennedy, J.); 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)). 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.” 134 S. Ct. at 1825 (Kennedy, J.). That

we permit legislative prayer “does not suggest that those who disagree are compelled to join the

expression or approve its content.” 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.”).

We start, consistent with Town of Greece, by declining to view the coercive effect of

prayers at local government meetings differently from the effect of prayers at legislative sessions

because local government meetings are small, intimate, and often involve citizens raising issues

that most immediately affect their lives. In these tightknit gatherings of a few community

members, the argument goes, residents who appear before local officials are likely to join in

prayers despite misgivings for fear of offending the officials. To be sure, this difference was at

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, 430 U.S. at 193 (internal quotation marks and citation omitted).

Only five justices concurred in Town of Greece. Justices Thomas and Scalia specifically concurred in Justice

Kennedy’s tradition analysis, but not in his social-coercion analysis. Instead, Justice Thomas offered a narrower

definition of coercion: that a more limited set of government actions—those backed “by force of law and threat of

penalty”—will constitute coercion. Town of Greece, 134 S. Ct. at 1837 (Thomas, J., concurring in part and in the

judgment) (quoting Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J., dissenting)). As such, Justice Thomas’s

opinion is the narrowest and should control. Judges Batchelder and Thapar concur.

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

the core of an opinion in Town of Greece: Justice Kagan’s dissent. Id. 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. Neither do we.

It is significant here, as in Town of Greece, that “[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 (Kennedy, J.).11 Bormuth

admitted to not participating in Jackson County’s prayer practice. His “quiet acquiescence

[should] not, in light of our traditions, be interpreted as an agreement with the words or ideas

expressed.” Id.

Instead of acknowledging this critical concession, Bormuth and Amicus Americans

United argue Jackson County’s invocation practice is coercive in three ways Town of Greece was

not: (1) the Board’s Chairman (or other Commissioners) preface the prayers with a request to

rise and assume a reverent position; (2) two Commissioners turned their backs on Bormuth while

he was speaking during public comment, and two others made statements reflecting their dislike

of him; and (3) the Board denied Bormuth’s requests to sit on two citizen committees. They

therefore contend that application of Justice Kennedy’s coercion standard requires a different

outcome. We disagree.

First of all, we do not agree that soliciting adult members of the public to assist in

solemnizing the meetings by rising and remaining quiet in a reverent position is coercive. See

Am. Humanist Ass’n, 851 F.3d at 526 (“polite requests” by governmental officials to stand for

invocations “do not coerce prayer”). These “commonplace” and “reflexive” requests—whether

from ministers or elected individuals following their own faith’s normative cues—do not alone

mandate participation, especially as most are preceded with a polite “please.” Town of Greece,

134 S. Ct. at 1832 (Alito, J., concurring). We do not think there is a constitutional difference

11

In Lund, the Fourth Circuit concluded “these options, such as they were, served only to marginalize.”

863 F.3d at 288. Even if these options so marginalized attendees, they are options Justice Kennedy’s plurality

opinion expressly approved. See id. at 320 (Agee, J., dissenting) (citing Town of Greece, 134 S. Ct. at 1827

(Kennedy, J.)).

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

here, for government-sanctioned prayers by official chaplains or invited community members

still fall within the ambit of the Establishment Clause. More importantly, and 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.” And, it is not as if a

Commissioner specifically ordered Bormuth to stand and remain reverent in the face of

Bormuth’s protest to the contrary. See, e.g., Fields v. Speaker of the Penn. House of

Representatives, — F. Supp. 3d —, 2017 WL 1541665, at *2, 11 (M.D. Pa. Apr. 28, 2017)

(plaintiffs plausibly pled a violation of the Establishment Clause in a legislative prayer case

where the Speaker of the House “publicly singled out [objectors] and ordered them to rise for the

invocation,” and “[w]hen they refused, the Speaker directed a legislative security officer to

‘pressure’ them to stand”).

Second, that two Commissioners on separate occasions turned their backs on Bormuth

during his public comments gives us no constitutional pause. One of these incidents was in

response to Bormuth’s comments about abortion and thus unrelated to the Board’s invocation

practice. Rather, as the district court found, “the[] behavior [wa]s likely an unfortunate

expression of their own personal sense of affront elicited by [Bormuth’s] sentiments.”

Moreover, these isolated incidents are not indicative of a “pattern and practice” of coercion

against nonbelievers of religion. Town of Greece, 134 S. Ct. at 1826 (Kennedy, J.).

Bormuth and Amicus Americans United also point to post-litigation statements made by

two of the Commissioners as reported in a local newspaper as evidence of him being treated

differently on account of his complaints regarding the prayer practice. Those statements are as

follows:

 Commissioner Rice: “[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.”

 Commissioner Duckham: “What about my rights? . . . If a guy doesn’t want to hear a

public prayer, he can come into the meeting two minutes late.”

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

 Duckham: “All this political correctness, after a while I get sick of it.”

 Rice: “We Commissioners, as individuals, have a right to pray as we believe.”

Three are in the context of an individual’s right to offer a prayer of his faith, without

preclearance by “an administrator or judge,” and thus offer no help to Bormuth. Id. at 1822–23

(Majority Op.). That is, their comments confirm the prayers accommodate the Commissioners’

spiritual needs and are not directed toward the audience. Id. at 1826 (Kennedy, J.). The fourth,

the political correctness comment, at worst reflects a stray statement by one of the nine

Commissioners and is not reflective of the Board as a whole.

Moreover, nothing in the record suggests that the Commissioners who turned their backs

on Bormuth or spoke out about him in public were expressing antagonism for his religious

beliefs. Rather, the record reflects they reacted to his antagonism toward them. Individuals in

Jackson County, including elected officials, know what getting sued by Bormuth feels like,

having been in the position many times before. See, e.g., Bormuth v. City of Jackson, No. 12-

11235, 2013 WL 1944574, at *2 (E.D. Mich. May 9, 2013) (criticizing Bormuth for “inject[ing]

into the record venomous, irrelevant, and gratuitous commentary”).12 The Commissioners did

react poorly to Bormuth’s actions. Context shows, however, that they reacted not to his beliefs

but to the litigious way he chose to express them. Indeed, the comments quoted above came

after Bormuth had brought yet another lawsuit. The Establishment Clause might prevent

government officials from making a practice of “singl[ing] out dissidents for opprobrium,” Town

of Greece, 134 S. Ct. at 1826 (Kennedy, J.), but it does not require them to keep their cool. This

point separates this case from Lund, where the Fourth Circuit found “[m]ultiple” examples of

prayers portraying non-Christians as “spiritual[ly] defect[ive]” and “suggesting that other faiths

are inferior.” 863 F.3d at 284–85. No such practice of opprobrium has been alleged here, let

alone shown.

That leaves us with Bormuth’s final coercion claim that Jackson County allocated

benefits and burdens due to Bormuth’s objection to its prayer practice by not appointing him to

12

See also Bormuth v. City of Jackson, No. 12-11235, 2012 WL 5493599 (E.D. Mich. Nov. 13, 2012);

Bormuth v. Dahlem Conservancy, 837 F. Supp. 2d 667 (E.D. Mich. 2011); cf. In re: Peter Carl Bormuth, No. 13-

1194 (6th Cir. April 23, 2013); Bormuth v. Johnson, No. 16-13166, 2017 WL 82977 (E.D. Mich. Jan. 10, 2017);

Bormuth v. Grand River Envtl. Action Team, No. 321885, 2015 WL 6439007 (Mich. Ct. App. Oct. 22, 2015).

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

the Solid Waste Planning Committee or the Board of Public Works. Assuming appointments to

local citizen advisory boards rises to the level of “allocating benefits and burdens” under Town of

Greece, and including those facts set forth in Bormuth’s second motion to supplement that the

district court denied, we do not agree.13

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 that he “believes he was excluded deliberately in

retaliation for his Pagan religious beliefs, his hostility to an established Christian religion, and his

filing of this lawsuit in Federal Court.” 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

judgment.” Travelers Prop. Cas. Co. of Am. v. Hillerich & Bradsby Co., 598 F.3d 257, 270 (6th

Cir. 2010) (citation omitted). Bormuth failed to put forth any evidence tying his objection to the

invocations to the Board’s decision to not appoint him to the Solid Waste Planning Committee,

and we therefore give no weight to this allegation.

We know slightly more with respect to his application for an appointment to the Board of

Public Works. Yet, other than Bormuth’s attestation that he was “the most qualified applicant,”

there is nothing in the record linking the refusal to appoint Bormuth to the Board of Public

Works to his objection to the prayer policy. Bormuth even admits he was told that the candidate

selected “was a former township supervisor who was involved with setting up a township

recycling station and that his experience with recycling was the focus for his appointment.”

Accordingly, there is no record evidence indicating Jackson County “allocated benefits and

burdens based on participation in the prayer. . . .” Town of Greece, 134 S. Ct. at 1826 (Kennedy,

J.).

On this record, Bormuth has not carried his burden to set aside Justice Kennedy’s

presumption that reasonable observers know legislative prayer “lend[s] gravity to public

proceedings[,] and . . . acknowledge[s] the place religion holds in the lives of many private

13

Because we assume those facts not accepted by the district court, the alleged error, if any, in denying

Bormuth’s second motion to supplement was harmless.

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

citizens,” and does not “afford government an opportunity to proselytize or force truant

constituents into the pews.” Id. at 1825. At bottom, Bormuth has shown he was offended by the

Christian nature of the Board’s prayers. But “[o]ffense . . . does not equate to coercion.” Id. at

1826. Jackson County therefore did not “engage in impermissible coercion merely by exposing

[Bormuth] to prayer [he] would rather not hear and in which [he] need not participate.” Id. at

1827.

2.

Finally, under Justice Thomas’s legal coercion test, 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 “actual legal coercion.” Id. at 1838 (Thomas, J.,

concurring in part and in the judgment).

C.

In sum, Jackson County’s invocation practice is consistent with Marsh v. Chambers and

Town of Greece v. Galloway and does not violate the Establishment Clause.

V.

For these reasons, we affirm the judgment of the district court.

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

_________________

CONCURRENCE

_________________

ROGERS, J., concurring. I concur in the majority opinion.

I write separately to explain why Justice Thomas’s concurrence in Town of Greece,

however compelling it may be, does not constitute binding precedent for us in this case.

The general rule of both horizontal and vertical stare decisis is that holdings of the same

court, and of a higher court (to which the parties can appeal), not overruled or superseded by

later such holdings, constitute binding precedent. Horizontal stare decisis protects the

fundamental interest of deciding like cases alike (basic fairness), and the interest of having

people know what the law is (notice). Vertical stare decisis in a pyramidal court system, in

addition, obviates the need for repeated appeals. A lower federal court should decide the same

way as an unsuperseded holding of the U.S. Supreme Court, assuming that the facts are not

materially distinguishable. In particular, when there is argument as to whether facts are

materially distinguishable, we look to the reasoning of the majority Justices to see what facts and

reasoning led to the majority holding.

This is straightforward when five or more members of the Supreme Court agree on the

reasoning for the holding. As a matter of long-standing, deeply accepted practice, we do not

treat holdings as less binding when the majority members of the precedent-setting Court have

been replaced. We assume for stare decisis purposes that the same Justices are still there.

The above analysis also applies quite simply in the case of split majority opinions. To

the extent that facts are not materially distinguishable, and the case has not been overruled or

superseded, we should reach the same result that the precedent Court would have necessarily

reached, to the extent that we can do so, by looking one-by-one at the controlling rationale of

each of the various opinions that make up the precedent majority. This serves directly the

underlying purposes of horizontal and vertical stare decisis.

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

The following conclusion of Judge Kavanaugh states with striking elegance the rule that

fundamentally serves these purposes:

Even though it is often not possible to identify a “common rationale” in the

multiple opinions from a splintered decision, lower courts can still reach a result

consistent with the opinions of a majority of the Supreme Court. They can do so

by following the opinion that would lead to an outcome that a majority of the

Supreme Court in the governing precedent would have reached if confronted with

the current case.

United States v. Duvall, 740 F.3d 604, 613 (D.C. Cir. 2013) (Kavanaugh, J., concurring).1

This test has the incidental advantage of not foisting a strange meta-analysis on lower

courts to determine which of two Supreme Court positions is, for instance, more or less

“doctrinally far-reaching.” See United States v. Cundiff, 555 F.3d 200, 209 (6th Cir. 2009). All

the lower court has to do is run its analysis using the various opinions in the split decision, and

then see whether now holding the same way as the split precedent majority would have obtained

five votes of that majority.

The test is also consistent with the Marks narrowest-grounds rubric. Marks, like this

case, was one in which multiple opinions were “linear” or “nested.” See King v. Palmer,

950 F.2d 771, 781 (D.C. Cir. 1991). A “linear” or “nested” set of rulings is one in which any

ruling in the same direction as the majority, under one of the opinions constituting the majority,

would logically require the judges of the other decision to rule the same way. See id.; see also

Duvall, 740 F.3d at 610 (Kavanaugh, J., concurring). It is in that context that the controlling

opinion is “narrower”: the future cases that it would control comprise a smaller set than the set of

cases that would be controlled by the other. As Judge Kavanaugh noted, in such linear cases the

opinion “that occupies the middle ground” between the “broader opinion supporting the

judgment” and the dissent will normally be controlling. Duvall, 740 F.3d at 610 (Kavanaugh, J.,

1

In defense of just this test, an obscure legal academic explained twenty years ago that this is what federal

courts actually do. Rogers, “Issue Voting” by Multimember Appellate Courts, 49 VAND. L. REV. 997, 1007–09

(1996) (citing Siegmund v. General Commodities Corp., 175 F.2d 952 (9th Cir. 1949) (applying National Mutual

Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949)); Detres v. Lions Building Corp., 234 F.2d 596 (7th Cir.

1956) (applying Tidewater); Banco Nacional de Cuba v. Chase Manhattan Bank, 658 F.2d 875 (2d Cir. 1981)

(applying First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972)); Greene v. Teffeteller, 90 F.

Supp. 387 (E.D. Tenn. 1950) (applying Tidewater)).

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

concurring). The “middle ground” in Town of Greece with respect to coercion is clearly Justice

Kennedy’s opinion.

The test also avoids an anomaly like the one that would result if, for instance, we were to

hold that Justice Thomas’s opinion was controlling precedent in this case. In a future case, we

would have to hold that religious practices that seven Town of Greece Justices would clearly find

unconstitutional were nonetheless constitutional because of the views of only two Justices. Such

an anomalous result would be inconsistent with fundamental principles of stare decisis.

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

_________________

CONCURRENCE

_________________

SUTTON, Circuit Judge, concurring.

“Let us pray.” Or “Let me pray.”

“Please join me in prayer.” Or “Please join me, if you wish, in prayer.”

“Please stand reverently as we pray.” Or “Please stand reverently, if you wish, as we pray.”

“Council member Smith will now offer a prayer.” Or “Our chaplain will now offer a prayer.”

“We pray these things in Jesus’s name.” Or “We pray these things in God’s name.”

“We pray these things in God’s name” while making the sign of the cross.

Or “We pray these things in God’s name” without making the sign of the cross.

In telling Congress and eventually the States that they “shall make no law respecting an

establishment of religion,” the First Amendment does not preference any of these options. Nor

does the guarantee suddenly spring into action based on the percentage of invocation prayers

given in one faith tradition over time—25%?, 50%?, 75%?, 100%?—so long as the

governmental body does not exclude prayers because of their content.

Good manners might have something to say about all of this and how it is done. So too

might the Golden Rule. But the United States Constitution does not tell federal judges to hover

over each town hall meeting in the country like a helicopter parent, scolding/revising/okaying the

content of this legislative prayer or that one.

Instead of asking judges to referee what will inevitably become arbitrary lines and thus

will run the risk of becoming judge-preferenced lines, case law looks to American historical

practices to determine what the Establishment Clause allows and what it does not. History

judges us in this area. We do not judge history. For all of American history, such prayers have

been allowed, whether invoking Jesus, God, or something else, whether by government-paid

chaplains or by the elected officials themselves. And for all of American history, the United

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

States Supreme Court has authorized such prayers. No one doubted the practice for most of our

history. And when challenges to the practice first arose about thirty-five years ago, the Supreme

Court made clear that such prayers are constitutional so long as they do not coerce non-believers.

See Marsh v. Chambers, 463 U.S. 783 (1983); Town of Greece v. Galloway, 134 S. Ct. 1811

(2014).

One point on which we can all agree is that the solemnity of the occasion, then and now,

makes spiritual invocations a permissible way to begin work on behalf of the People—in

legislative bodies, executive proceedings, or court hearings. I am not aware of a single opinion

by a Justice of the United States Supreme Court or by a Judge of our Court who doubts that

point.

The point on which we have trouble agreeing is what terms individual chaplains and

individual elected officials may use in offering such invocations. But here’s the rub: If the

explanation for an invocation prayer is the humble act of seeking divine guidance before a

session of government, is it not strange for judges to interfere with the content (e.g., God, Allah,

or Jesus) or symbols (e.g., making the sign of the cross or not) of that official’s prayer? Why

permit legislative prayers, then call them a trespass when done sincerely in the manner

traditionally used by that individual? So long as the prayer giver does not try to coerce anyone

into adopting their faith, so long in other words as the individual gives an invocation, not an altar

call, I see no meaningful role for judges to play.

No less importantly, does the prohibition on establishing any one religion really require

us to pick one set of the above invocation options over the other? Do we really want to go down

the road of telling people how to pray? There would be some irony in accepting this invitation.

We have whole bodies of law connected to adjacent guarantees of the First Amendment that

confirm the perils of allowing government officials to regulate the content of speech, and still

more the content of a religious exercise, unless absolutely necessary. At some point judicial

prescription prevents the words of an invocation prayer from being a prayer at all. The courts in

this country have set their example by using “God,” as in “God save this Honorable Court.”

Others are free to follow the courts’ example and perhaps learn from it. But with the exception

of prohibiting coercion or proselytization, I doubt the federal courts can do anything better than

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

teach by example and trust Americans in large cities and small hamlets to respect our many

traditions and to live and learn over time through the experience of using different invocation

practices.

Even references to “God,” which make most people comfortable, are not a balm for

everyone. It’s a multi-perspective word, yes. But it’s not an all-perspective word, as Mr.

Bormuth’s position in this case confirms. In his view, none of the options listed at the outset of

this opinion satisfies the Establishment Clause. All references to any one faith or to religion in

general, he says, must be removed from governmental proceedings. Who is coercing whom

under that approach? And what are we establishing?

In resolving cases of this sort, I would be mindful about what we are “walling in or

walling out.” Governmental bodies, courts included, usually strive to be respectful of the

diversity of faiths in any one town, region, or the country as a whole. As well they should. But

what really counts as respect? And what really counts as tolerance? Different perspectives

abound. For some, it’s too much information to listen to an individual’s traditional way of

praying. For others, it conveys more respect, not less, when the individual invokes their God

authentically and unguardedly and in the process offers a glimpse into who they are. I am

reticent to favor one perspective over the other.

Either way, none of this should obscure the broader point that the terms of the

Constitution and the words of our cases do not require, or even allow, us to parse highly personal

offerings on the basis of our intuitions or social conventions about how best to foster religious

sensitivity in America. Who can say when a prayer offered with humble fervor has too much

fervor and too little humility? That’s not a line the Constitution asks us to draw, and any efforts

to innovate one are apt to do more harm than good for the cause of tolerance.

The idea that the Establishment Clause favors chaplain-led prayers over legislator-led

prayers is particularly puzzling. Prayers by their nature are personal, even when offered in a

public setting. It is a petition by the individual, not the State or City. And that’s the way most

people perceive them given our long history of permitting such invocations. Just as we would

not mistake a legislator’s reference to his or her faith during a floor debate as an establishment of

No. 15-1869 Bormuth v. County of Jackson Page 40

religion, we should not make that mistake when they invoke their personal faith as part of an

invocation. But if there is a message-sending risk with invocation prayers, I would think it

grows, rather than diminishes, when the governmental body hires a faith leader (necessarily of

one faith) to say the prayers. A government-sponsored faith leader seems closer to an

establishment than allowing each official to pray however they wish or to offer no prayer at all.

How, after all, does a pattern of legislator-led prayer with respect to one faith coerce

citizens to follow that faith in a way that chaplain-led prayer of a single faith does not? If the

elected officials offer an invocation prayer in their own personal way, that coerces no one. If

anything, risks of endorsement and any other risks at the outer edges of the Establishment Clause

cases increase if the government must hire a chaplain to permit an opening prayer. And if Mr.

Bormuth succeeds, that of course will be the remedy: Hire a minister. Does that solution really

satisfy the concerns of those inclined to adopt it? And what of a legislator who is also a person

of the cloth? Could John Danforth but not John McCain give an invocation? When a line offers

no meaningful distinctions, it is a good time to ask whether the court should draw it.

One last point deserves emphasis. There is no cognizable evidence that the council

excluded any commissioner who asked to give a prayer or who chose not to give a prayer. And

there is no evidence that the council adopted its invocation practice with the goal of favoring this

religion or that one. The practice was around long before Mr. Bormuth entered the scene,

whether in this town or in many others around the country. In a country of this size and

diversity, with thousands of local governmental bodies, it should surprise no one that some small

towns have elected officials of one faith. Just as many people of like-minded political views

sometimes live in the same area, so too do many people of like-minded faiths sometimes live in

the same area. That is inevitable in such a large country. Nor is that the only inevitability in this

area. Just as often, more often in fact, our pluralism leads to a greater diversity of faith and a

greater diversity of prayer across the country or in some instances increases the pressure to

abandon invocation prayers altogether. The Establishment Clause does not place a thumb on

these local choices.

What I have said so far addresses the main issues presented at the panel stage of this case

and the main issues joined at that stage. At the en banc stage, considerable attention has been

No. 15-1869 Bormuth v. County of Jackson Page 41

given to the discovery issues and the reaction of a few Council members to Mr. Bormuth’s

complaints. Just as I join Judge Griffin’s fine opinion in full with respect to the general legal

principles in this area, I join his opinion in full with respect to the other features of this case. Let

me add a few points as to these other issues.

Mr. Bormuth cannot have it both ways. He filed this case as a pro se litigant and insisted

on not having an attorney, even when one was offered. Having refused to take an attorney, he is

not entitled to relaxed pleading standards or relaxed motions standards of the sort we sometimes

give to pro se litigants.

Virtually all of the evidence that Mr. Bormuth now wants us to consider is not admissible

or even in the record. And it was he, not the county, who first moved—twice—for summary

judgment. At the summary judgment phase of a case, parties no longer may rely on the

pleadings. To generate a material dispute of fact, they must cite “particular parts of . . . the

record” or show the absence of supporting evidence on the other side. Civil Rule 56(c)(1). Rule

56 expressly limits what we may consider to “materials in the record,” Civil Rule 56(c)(3),

a mandate that applies to all parties—represented or not, willing to accept representation or not.

All of this means we may not consider most of the “evidence” on which Mr. Bormuth

now relies: the “Pandora’s Box” comment; the “nitwit” remark; the “political correctness

nonsense” remark; and the absence of prayer in a meeting without public attendance.

A complaint is not evidence. Briefs are not evidence. And Bormuth never asked the district

court to take judicial notice of any specific video or videos. The closest he came to introducing

the videos was an attachment to his motion for summary judgment. All he did, however, was

recite various prayers given at the town council meetings and cite the online videos as his source.

But his transcriptions did not include any of the comments or incidents mentioned above. They

included only a selection of the prayers given during invocations.

The district court also did not abuse its discretion in rejecting Bormuth’s request to

depose Council members about their invocation prayers. It concluded that courts should “focus

not on the personal motives or biases of government officials, but rather on the objective content

of the prayer, the impact it has on the listeners, and any situational aspects of it that could be

No. 15-1869 Bormuth v. County of Jackson Page 42

unduly coercive.” An invocation prayer does not become unconstitutional under the

Establishment Clause, or for that matter become constitutional under the Clause, based on the

subjective motives of the individual who gave it. Even when the Court has invalidated a display

under the Establishment Clause, it did not do so based on the subjective purposes of the local

officials. See McCreary County v. ACLU, 545 U.S. 844, 861–63 (2005).

But if one prefers to ignore the conventional rules for resolving summary judgment

motions, I would ignore them in full. Other materials, including lower court decisions

mentioned in one of the amicus briefs, and all of the videos, show why the council members

became frustrated with Mr. Bormuth and confirm that this frustration had little to do with his

religious beliefs and more to do with his methods of advocacy. This was not his first legal

grievance, to put it mildly. See, e.g., Bormuth v. City of Jackson, No. 12-11235, 2013 WL

1944574, at *2 (E.D. Mich. May 9, 2013) (chronicling Bormuth’s penchant for “inject[ing] into

the record venomous, irrelevant, and gratuitous commentary”); Bormuth v. City of Jackson, 12-

11235, 2012 WL 5493599, at *1–2 (E.D. Mich. Nov. 13, 2012) (denying Bormuth’s claim that

he suffered religious discrimination when, as in his words “one of the best poets in Jackson

County” and a “rare ‘druidic bard,’” he was asked to stop attending a community college’s

poetry readings); Bormuth v. Dahlem Conservancy, 837 F. Supp. 2d 667, 670 (E.D. Mich. 2011)

(denying Bormuth’s religious discrimination claim against a private non-profit nature center that

asked Bormuth to stop visiting after he emailed this threat: “tell your groundsman that the next

time I see him driving that diesel cart just because he is too la[z]y to walk [I] will . . . have the

spirits drop a widow maker on him putting him in a wheel chair the rest of his life.”); see also

Bormuth v. Johnson, No. 16-13166, 2017 WL 82977, at *3 (E.D. Mich. Jan. 10, 2017) (rejecting

his claim that his loss in the Democratic primary was due to a “deliberate attempt by [a]

Christian”—the Secretary of State—“to deny a Pagan candidate” a fair election); In re Peter

Carl Bormuth, No. 13-1194 (6th Cir. Apr. 23, 2013) (rejecting his mandamus action seeking the

recusal of a judge who was a Christian); Bormuth v. Grand River Envtl. Action Team, No.

321865, 2015 WL 6439007 (Mich. Ct. App. Oct. 22, 2015) (rejecting his claim that he should be

able to conduct groundwater tests on a nonprofit’s property).

No. 15-1869 Bormuth v. County of Jackson Page 43

During the en banc oral argument, the lawyer for the county acknowledged, quite

properly, that the council members should not have expressed their frustration with Mr.

Bormuth—or for that matter with anyone else who brings a matter to the council. But in the

context of these other legal disputes, it is a bit rich to say that the council members reacted

negatively to him due to his spiritual views in particular or to his position on council prayers in

general.

No. 15-1869 Bormuth v. County of Jackson Page 44

_________________

DISSENT

_________________

KAREN NELSON MOORE, Circuit Judge, dissenting. When Peter Bormuth voiced his

objection to the Jackson County Board of Commissioners’ practice of opening public meetings

with exclusively Christian prayers, a Jackson County Commissioner made a disgusted face at

Bormuth and turned his chair around, refusing to listen. R. 10 (Am. Compl. ¶ 31) (Page ID #69).

One Commissioner called Bormuth a “nitwit” for questioning the prayer practice. County of

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

(Dec. 19, 2013), http://tinyurl.com/2013nov12 (43:29‒43:35). One Commissioner referred to

Bormuth’s objection as an attack on “my lord and savior Jesus Christ.” R. 14 (Pl. First Mot. for

Summ. J., Ex. C) (Page ID #149); see also County of Jackson, Personnel & Finance Committee

November 12, 2013 Jackson County, MI, YouTube (Dec. 19, 2013),

http://tinyurl.com/2013nov12 (32:50‒32:59) (characterizing Bormuth’s challenge to the prayer

practice as “an attack on Christianity and Jesus Christ, period”). The Commissioners, all of

whom are Christian, refused to allow any non-Commissioners to give prayers, and did so in

order to avoid hearing prayers they would not like. 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). When Bormuth sought to join the County’s Solid

Waste Planning Commission and then the Board of Public Works, the Commissioners denied his

applications. The district court denied Bormuth the opportunity to depose the Commissioners

about why they rejected Bormuth’s applications, see R. 59 (Dist. Ct. Order Granting Mot. to

Quash at 2‒3) (Page ID #1045‒46), but there is reason to believe that they did so because

Bormuth objected to the practice of opening public meetings with Christian prayers, see R. 10

(Am. Compl. ¶ 33) (Page ID #69).

There is no doubt that some legislative prayer practices are constitutional. See Town of

Greece v. Galloway, 134 S. Ct. 1811, 1828 (2014); Marsh v. Chambers, 463 U.S. 783, 795

(1983). The question in this case is whether the undisputed constitutionality of a practice of

solemn, respectful, chaplain-led prayer should protect the Jackson County Board of

No. 15-1869 Bormuth v. County of Jackson Page 45

Commissioners’ prayer practice, which involves having local Commissioners themselves direct

the public to participate in prayers; offering prayers from only one faith tradition, Christianity;

affirmatively excluding non-Christians from the opportunity to offer prayers or invocations;

publicly deriding citizens who voice their objections to the Commissioner-led and exclusively

Christian prayer practice; and denying public positions to citizens who object to the prayer

practice. Town of Greece demands that courts distinguish solemn, respectful practices from

practices that “denigrate nonbelievers or religious minorities, threaten damnation, or preach

conversion.” 134 S. Ct. at 1823. Instead, the majority extends the constitutional protection

meant for solemn and respectful prayer traditions to a practice that excludes non-Christians from

the prayer opportunity and expresses disgust at people who voice a different opinion.

I respectfully dissent.

I. BACKGROUND

Each meeting of the Jackson County Board of Commissioners 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). The Commissioners always

end their prayer in the name of Jesus Christ. County of Jackson, Personnel & Finance

Committee November 12, 2013 Jackson County, MI, YouTube (Dec. 19, 2013),

http://tinyurl.com/2013nov12 (“Every board member here who gets up there and says a prayer

during invocation, we end our invocation in the name of Jesus Christ.”). 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). 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

No. 15-1869 Bormuth v. County of Jackson Page 46

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.

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.

During the meeting’s public-comment period, Bormuth explained that he thought that the

monthly prayers violated the Establishment Clause. Id. ¶ 31 (Page ID #69). 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.

No. 15-1869 Bormuth v. County of Jackson Page 47

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 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). The parties filed motions for summary judgment. Bormuth moved for summary

judgment before the Supreme Court decided Town of Greece and then, after Town of Greece, the

parties filed cross-motions addressing that case. See R. 25 (Def. Mot. for Summ. J.) (Page ID

#244); 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

No. 15-1869 Bormuth v. County of Jackson Page 48

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).

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 recommended that the district court deny Jackson County’s motion

for summary judgment and grant Bormuth’s motion for summary judgment because “the

legislative prayer practice of the Jackson County Board of Commissioners violates the

Establishment Clause.” R. 50 (R. & R. at 39) (Page ID #914). Rejecting this recommendation,

the district court granted the county’s motion for summary judgment and denied not only

Bormuth’s summary-judgment motion but also his discovery motions. 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

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

No. 15-1869 Bormuth v. County of Jackson Page 49

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

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

No. 15-1869 Bormuth v. County of Jackson Page 50

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).

II. ANALYSIS

A. Videos of Jackson County Board of Commissioners’ Meetings

Some of the evidence that Bormuth presented to the district court comes from videos of

the Jackson County Board of Commissioners’ meetings, which Jackson County records and

posts online. Before analyzing Bormuth’s Establishment Clause claims, I will explain why this

court should consider the video evidence.

Before that, it is important to explain what the videos show. First, the videos reveal that

the Board of Commissioners decided not to let guest ministers or members of the public offer

opening prayers at their meetings because they were concerned about “certain people com[ing]

up here and say[ing] things that they are not going to like.” County of Jackson, Personnel

& Finance Committee November 12, 2013 Jackson County, MI, YouTube (Dec. 19, 2013),

http://tinyurl.com/2013nov12 (38:02–38:16). A Commissioner characterized allowing anyone

other than the Commissioners themselves to give prayers as “opening a Pandora’s Box.” Id.

After this discussion, the Commissioners decided to continue giving the prayers themselves, at

least for the time being, to avoid hearing “things that they are not going to like.” Id. at 38:02–

38:16, 46:51–47:25. Second, the videos reveal that during a two-year span, the Board of

Commissioners prayed at every meeting except the one that no members of the public attended.

See 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). This pattern

undercuts the argument that the prayers were intended for the Commissioners themselves, not the

public. The facts contained in these videos are relevant to a “fact-sensitive” inquiry that

No. 15-1869 Bormuth v. County of Jackson Page 51

“considers both the setting in which the prayer arises and the audience to whom it is directed,” as

Town of Greece requires. Town of Greece, 134 S. Ct. at 1825.1

Despite the majority’s argument to the contrary, these videos are part of the record.

Bormuth called the district court’s attention to the videos.2 Bormuth’s pleadings notified the

district court about the County’s practice of recording the Board of Commissioners’ meetings

and posting the videos online, and repeatedly referenced the existence of the videos and events

from the meetings. 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). Including these repeated references to the videos and

pointing the district court to the website where the County posted the videos was enough to make

them part of the record.3

Even if these videos are not part of the record, the Federal Rules of Evidence require this

court to take judicial notice of them. “The court . . . must take judicial notice” of “a fact that is

1

Amicus Americans United for Separation of Church and State, not Bormuth, argued that the

Commissioners’ pattern of praying only at meetings that members of the public attended shows that the

Commissioners directed the prayers at citizens, not at themselves. Although amicus made this argument rather than

Bormuth, it should be considered for two reasons. First, the Supreme Court has held that it can consider arguments

raised only by amicus. See Davis v. United States, 512 U.S. 452, 457 n.* (1994) (“[W]e will consider arguments

raised only in an amicus brief.”) (citing Teague v. Lane, 489 U.S. 288, 300 (1989)). If the Supreme Court considers

arguments raised only by amicus, there is no reason this court should not do so as well. Second, Americans United’s

argument is a more specific argument in support of Bormuth’s general claim that Jackson County’s prayer practice

violated the Establishment Clause. “Once a federal claim is properly presented, a party can make any argument in

support of that claim; parties are not limited to the precise arguments they made below.” Yee v. City of Escondido,

503 U.S. 519, 534 (1992). And in a case, like this one, where a party is pro se, it makes all the more sense to

consider arguments by amicus that refine the general arguments made by that party. See, e.g., McPherson v.

Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)) (“[W]e

read the pleadings of a pro se plaintiff liberally and interpret them ‘to raise the strongest arguments that they

suggest.’”). Regardless of whether the court considers this specific argument about Commissioners praying only at

meetings that members of the public attend, it should consider the video evidence more generally.

2

In fact, at oral argument during the panel stage of this case, counsel for the County stated that the official

record includes all of the videos of the Board of Commissioners’ meetings.

3

As discussed below, Bormuth is pro se, so we must construe his pleadings liberally.

No. 15-1869 Bormuth v. County of Jackson Page 52

not subject to reasonable dispute” “if a party requests it and the court is supplied with the

necessary information.” Fed. R. Evid. 201(b), (c). A fact “is not subject to reasonable dispute”

if it “can be accurately and readily determined from sources whose accuracy cannot reasonably

be questioned.” Fed. R. Evid. 201(b)(2). “The court may take judicial notice at any stage of the

proceeding.” Fed. R. Evid. 201(d). As the majority acknowledges, Jackson County admitted the

accuracy of these videos, making the facts contained within not subject to reasonable dispute.

Bormuth brought the videos to the attention of the district court (and this court) and supplied the

necessary information by pointing the court to Jackson County’s YouTube page, where the

county publicly posts the videos. As a result, the district court should have at least taken judicial

notice of the videos. Because a court can take judicial notice at any point in the proceedings, the

district court’s failure to take judicial notice of the videos does not affect this court’s obligation

to take judicial notice of the videos.

The majority attempts to skirt the requirement to take judicial notice of the videos by

pointing to an apparent tension between the rule that appellate courts must take judicial notice of

facts not subject to reasonable dispute if a party so requests and supplies the necessary

information, and the rule that appellate courts cannot consider evidence that was not before the

district court. Maj. Op. at 7. Even if this tension exists in some cases, it does not exist here.

This tension stems from the concern that appellate courts should not review “a better case

fashioned after a district court’s unfavorable order.” Id. (quoting DaimlerChrysler Corp.

Healthcare Benefits Plan v. Durden, 448 F.3d 918, 922 (6th Cir. 2006)). In this case, Bormuth

called the district court’s attention to the videos and the facts contained therein. The videos are

not part of a better case fashioned for appeal, but part of the very case that Bormuth presented to

the district court. The majority’s argument that “[o]ne need look no further than the opinions of

the magistrate judge and district judge to confirm” that “Bormuth did not present any video

evidence to the district court” gets it backward. Maj. Op. at 6. The district court’s failure to

consider the videos does not mean that Bormuth erred by not presenting the videos to the district

court, it means that the district court erred by not considering the videos that Bormuth

No. 15-1869 Bormuth v. County of Jackson Page 53

presented.4 The district court’s error in refusing to consider all the facts does not preclude this

court, in reviewing the district court, from considering facts that the district court erroneously

ignored.

B. Establishment Clause framework

Marsh and Town of Greece establish that legislative-prayer claims occupy a unique place

in First Amendment jurisprudence, and that the question whether a legislative prayer practice

violates the Establishment Clause is a fact-sensitive inquiry. 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. at 786.

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. (quoting Cty.

of Allegheny v. Am. Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 670 (1989)

4

Moreover, DaimlerChrysler and Conlin v. Mortgage Electronic Registration Systems, Inc., 714 F.3d 355

(6th Cir. 2013), the published cases that the majority relies on, are cases in which an argument was not presented in

the district court, not cases in which a fact was not presented to the district court. They do not analyze judicial

notice of facts or Federal Rule of Evidence 201. They are consequently not helpful in analyzing the apparent

tension between Federal Rules of Evidence 201 and proper role of appellate courts.

No. 15-1869 Bormuth v. County of Jackson Page 54

(Kennedy, J., concurring in judgment in part and dissenting in part)). 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. Town of

Greece also asked whether the prayer violated the Establishment Clause by being coercive. Id.

at 1825 (controlling opinion).

As the en banc Fourth Circuit recently pointed out, Marsh and Town of Greece “in no

way sought to dictate the outcome of every subsequent case.” Lund v. Rowan Cty., 863 F.3d

268, 276 (4th Cir. 2017) (en banc). “The Court acknowledged that it has not ‘define[d] the

precise boundary of the Establishment Clause.’ Accordingly, when the historical principles

articulated by the Supreme Court do not direct a particular result, a court must conduct a ‘fact-

sensitive’ review of the prayer practice.” Id. (quoting Town of Greece, 134 S. Ct. at 1819, 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 take the

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

either because it does not fit within the protected historical practice or because it is coercive.

1. Historical tradition

The first half of Justice Kennedy’s opinion in Town of Greece, which addressed the

historical tradition of legislative prayer, garnered a majority of the court. The Court held

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.’” Id. at 1820 (alteration omitted) (quoting Marsh, 463 U.S. at 786). The

Court also noted, 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

No. 15-1869 Bormuth v. County of Jackson Page 55

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.”5 Id. at 1824.

2. Coercion

The second half of Justice Kennedy’s opinion addressed coercion. Justice Kennedy’s

plurality opinion6 considered the argument that the town’s practice was coercive because 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, 492 U.S. at 659 (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 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

5

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 endeavored to do in its brief before the panel. 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.

6

Justice Kennedy’s plurality opinion is the controlling opinion on the issue of coercion, as discussed more

fully below.

No. 15-1869 Bormuth v. County of Jackson Page 56

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.

C. The district court abused its discretion by denying discovery to Bormuth

Because Town of Greece establishes that the legislative prayer inquiry is fact-sensitive,

before discussing whether Jackson County’s prayer practice falls within the historically protected

practice of legislative prayer, I first address the district court’s rulings on Bormuth’s requests for

discovery. 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) (quoting

Miller v. Countrywide Bank, N.A. (In re Countrywide Fin. Corp. Mortg. Lending Practices

Litig.), 708 F.3d 704, 707 (6th Cir. 2013)).

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

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

No. 15-1869 Bormuth v. County of Jackson Page 57

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 that 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). Therefore, the district court’s order denying the motion

to supplement the record was also an abuse of discretion.

Despite the fact that the district court misapprehended both the facts and the law, the

majority concludes that the district court “did not abuse its discretion” in denying Bormuth’s

No. 15-1869 Bormuth v. County of Jackson Page 58

discovery motions because “Bormuth failed to comply with Federal Rule of Civil Procedure

56(d).” Maj. Op. at 9. The majority adds that “[a]lthough we have set aside Rule 56(d)’s formal

affidavit requirement ‘when a party has clearly explained its need for more discovery on a

particular topic to the district court prior to or contemporaneously with the motion for summary

judgment,’ there is no need to do so here” because Bormuth himself moved for summary

judgment. Maj. Op. at 9 (quoting Unan v. Lyon, 853 F.3d 279, 293 (6th Cir. 2017)).7 Contrary

to the majority’s assertion, this is precisely the type of situation that calls for setting aside Rule

56(d)’s formal affidavit requirement. The majority errs, for two reasons, when it attempts to

justify its refusal to set aside Rule 56(d)’s formal affidavit requirement by construing Bormuth’s

summary-judgment motions as a concession that there are no disputed material facts.

First, Bormuth moved for summary judgment by arguing that legislator-led, exclusively

Christian prayer at local government meetings is always unconstitutional. Because there is no

dispute that Jackson County Commissioners lead prayers before Board of Commissioners’

meetings, or that the prayers are sectarian and exclusively Christian, no further factual

development would be necessary to award Bormuth summary judgment on this theory.

However, even if, contrary to the broader version of Bormuth’s argument, some legislator-led

prayer at local government meetings is constitutional, Jackson County’s prayer practice could be

unconstitutional pursuant to a narrower argument, under the fact-sensitive inquiry Town of

Greece requires. Bormuth’s motion for summary judgment arguing that legislator-led,

exclusively Christian prayer at local government meetings is always unconstitutional is not a

concession that there are no disputed material facts as to an alternative, narrower argument that

Jackson County’s prayer practice is unconstitutional because of facts specific to their prayer

practice.

The second reason is related to the first. Courts must construe pro se pleadings liberally.

Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005). This requirement underscores why

7

In Unan, which the majority relies on, we concluded that the plaintiffs “failed to comply not only with the

formal requirements of Rule 56(d), but also its substance” by failing to object to the district court’s decision to hold

discovery in abeyance and by conceding that they did not indicate who they would seek to depose or what

documents they would request. 853 F.3d at 293. By contrast, Bormuth complied with the substance of Rule 56(d)

by specifically indicating that he sought to depose the Jackson County Commissioners and to obtain documents

related to the Resource Recovery Facility.

No. 15-1869 Bormuth v. County of Jackson Page 59

we should not interpret Bormuth’s motions for summary judgment on a broader theory as a

concession that there are no disputed facts as to a narrower theory, given that he also sought

discovery to further develop the facts relevant to his narrower theory.8 Because Bormuth

specifically requested additional discovery and is a pro se litigant whose pleadings must be

construed liberally, Bormuth’s motions for summary judgment do not justify the district court’s

denial of Bormuth’s discovery motions.

The importance of these discovery motions bears emphasis. The district court’s

erroneous denial of Bormuth’s discovery motions deprived Bormuth of an opportunity to fairly

litigate the constitutional issues he raised. The majority’s decision to affirm these denials is all

the more disturbing when combined with its conclusion that the videos of Jackson County Board

of Commissioners’ meetings are not part of the record. The majority couches its opinion in

terms of Bormuth’s failure to carry his evidentiary burden, see Maj. Op. at 32, but it does so

while refusing to consider much of the evidence that Bormuth has presented (the videos) and

refusing to allow Bormuth to develop more probative evidence (to depose the Commissioners).

Town of Greece leaves no question that a legislative prayer practice can cross a

constitutional line, and that courts should review prayer practices to ensure that they do not fall

outside of the tradition of solemn and respectful prayer or coerce participation in a religious

exercise. See Town of Greece, 134 S. Ct. at 1826–27. In my view, and as discussed more fully

below, the facts currently before this court are enough to show that Jackson County’s prayer

practice crosses a constitutional line. It is one thing for the majority here to disagree with me on

this point. It is quite another thing for the majority to take the additional step of refusing to

consider evidence that the legislators intended to proselytize, affirmatively excluded non-

Christian prayer givers, and discriminated against a citizen who objected to the prayer practice.

The effect of deciding this case without considering either the County’s official video records or

the additional evidence Bormuth might have uncovered in discovery is to insulate a practice from

any judicial review even though it bears all the markings of an attempt to isolate and denigrate

8

There is no support for the proposition in Judge Sutton’s concurrence that Bormuth should not be treated

the same as other pro se litigants because he “insisted on not having an attorney, even when one was offered.”

Concurrence at 41. I note that the concurrence cites no authority for this proposition, most likely because there is

none. I also note that this proposition is as ill-conceived as it is unsupported.

No. 15-1869 Bormuth v. County of Jackson Page 60

non-Christians, or at least a callous disregard for the possibility of isolating and denigrating non-

Christians.

D. Jackson County’s prayer practice violates the Establishment Clause because it falls

outside of the historical tradition identified in Marsh

Even without considering the videos and without the benefit of depositions of the

Commissioners, it is clear to me that Jackson County’s prayer practice is unconstitutional. First,

Jackson County’s practice does not fall within the historical tradition of legislative prayer

identified in Marsh and Town of Greece. 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.

See 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). When the Board of Commissioners opens

its monthly meetings with prayers, there is no distinction between the government and the prayer

giver: they are one and the same. The prayers, in Bormuth’s words, are literally “governmental

speech.” 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—a local government meeting 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.

The identity of the prayer giver also 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. And

because in Jackson County the prayer content is exclusively Christian, by delivering the prayers,

the Commissioners are effectively endorsing a specific religion, Christianity. In Town of Greece,

the Supreme Court upheld the town’s prayer practice in large part because it included prayers

No. 15-1869 Bormuth v. County of Jackson Page 61

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.” Id. 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, by contrast, there is

no opportunity for members of other faiths to offer invocations. See Lund, 863 F.3d at 278 (“The

openness evinced by [the] elected bodies [in Marsh

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