Court protects small-town prayer from pagan activist Ruling likely headed to Supreme Court

WASHINGTON, D.C. – A federal appeals court rejected a one-man crusade to eliminate the long-standing tradition of allowing county commissioners to open their meetings in prayer. In Bormuth v. County of Jackson, the court rejected pagan activist Peter Bormuth’s lawsuit against the county of Jackson, Michigan, addressing an important church-state issue that will likely set up the need for Supreme Court review because of its conflict with another recent ruling.

In 2014, the U.S. Supreme Court unanimously protected legislative prayer in its Town of Greece v. Galloway decision, which required courts to consult history to interpret the Constitution’s Establishment Clause. Yet Bormuth attempted to dodge that ruling by using the discredited Lemon test to end the county’s prayer practice. The ruling by the full U.S. Court of Appeals for the Sixth Circuit in Cincinnati directly disagrees with a very similar case, Lund v. Rowan County, in the Fourth Circuit in North Carolina.

“The Court was right to look to our nation’s history—and not the archaic Lemon test—to interpret the Establishment Clause” said Daniel Blomberg, counsel at the non-profit, religious liberty law firm Becket. “And the court’s strong disagreement with a very similar case just decided in the Fourth Circuit means that the Supreme Court will soon have the chance to provide much-needed clarity in this area of the law.”

Legislators have opened meetings in prayer since before the founding of the country, and no one considered it to be an establishment of religion. As Becket explained in the friend-of-the-court brief that it filed with Stanford Law School Professor Michael McConnell, the Founders understood an establishment of religion to be government control of the church or government attempts to force people into or out of a church.

Yet the Lemon Test, named after the 1971 Lemon v. Kurtzman case, ignores history and encourages anti-religious activists to file lawsuits against religious expression, including monuments to fallen soldiers and the national motto “In God We Trust” in U.S. currency. Town of Greece and yesterday’s Bormuth decision are important steps to ensuring that the Establishment Clause is interpreted in the same way the rest of the Constitution is: by analyzing it through its historical context.

“Small-town officials and weary judges shouldn’t be held hostage to activists determined to fight over anything that hints at religion in public life. Today’s ruling reconnects the First Amendment with its historical roots, and helps prevent future divisive church-state lawsuits,” said Blomberg.

Jackson County is represented by Allison Ho of Morgan, Lewis & Bockius, LLP, and Hiram Sasser and Kenneth Klukowski of First Liberty Institute.

For more information or to arrange an interview with a Becket attorney, contact Melinda Skea at media@becketlaw.org or 202-349-7224. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish.