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Court of appeals sides with Bormuth in prayer case

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By Brad Flory – Exponent special writer

If Jackson County commissioners want to keep fighting to say their prayers at county meetings, the next battlefield appears to be the U.S. Supreme Court.

County leaders must decide if they will appeal or accept a Feb. 15 ruling by the U.S. Court of Appeals that reverses a lower court and strikes down the way commissioners handle prayers.

“The prayer practice is well outside the tradition of historically tolerated prayer, and it coerces Jackson County residents to support and participate in the exercise of religion,” the Sixth Circuit Court of Appeals held in a 2-1 ruling.

The decision is a victory for Jackson resident Peter Bormuth, a self-described pagan who has fought since 2013 to stop the practice of opening county board meetings with Christian prayers spoken by commissioners.

Appellate judges ordered the U.S. District Court in Detroit to enter a ruling in Bormuth’s favor. No significant money damages are involved.

Jackson County Administrator Michael Overton said the county’s next step will be decided in closed session with attorneys at a Feb. 21 Board of Commissioners meeting. Overton said he will not recommend opening that meeting with the usual prayer.

“I think we should listen to what the court has said and open with a moment of silent reflection until we’ve had opportunity to speak with our attorney,” he said.

Two main options are evident: Commissioners can keep fighting by asking the Court of Appeals to reconsider or by appealing to the Supreme Court; or they can accept defeat and change the way prayers are delivered.

Prayer itself is clearly legal, and Overton has stressed repeatedly that prayer will not be banished from county meetings by Bormuth’s lawsuit. The key question is whether the commissioners themselves can legally lead prayers during a government meeting.

Implications go well beyond Jackson County meetings. Other local governmental bodies, including the Jackson City Council, also open their meetings with prayers spoken by members. Members of Summit, Columbia, and Rives townships also start their meetings with a prayer.

Bormuth filed suit on Aug. 30, 2013, arguing that county commissioners violate the Constitution and the rights of non-Christians by saying prayers at public meetings.

In response, county attorneys quickly recommended that commissioners should align with legal precedent, or “case law,” by inviting local clergy members to deliver the prayers.

Citing their own First Amendment rights to pray, commissioners rejected the attorneys’ advice and chose to fight Bormuth in court while continuing to lead prayers themselves.

Bormuth won a short-lived victory in 2015, when a U.S. District Court Magistrate in Detroit ruled in his favor. Four months later, U.S. District Judge Marianne O. Battani rejected the magistrate’s logic and ruled for Jackson County commissioners.

“There has been no showing that the invocations delivered at Jackson’s board meetings have denigrated or attempted to proselytize nonbelievers,” Battani ruled.

“Indeed, the content of the invocations incorporates rather benign religious references, such as blessing America’s troops and requesting divine guidance during deliberation.”

Now the Court of Appeals, in turn, rejects Battani’s logic and concludes that prayers delivered by elected leaders at government meetings – at least the way Jackson County does it – violates the Constitutional rule against government establishing religion.

“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 Appeals Court ruled.

The majority ruling also cited comments made by commissioners after Bormuth filed his lawsuit as evidence that Jackson County displays a poor grasp of religious freedom.

Comments cited include Commissioner Philip Duckham’s reference to Bormuth as a “nitwit” at a 2013 committee meeting and, at the same meeting, Commissioner Carl Rice Jr.’s fear that a Pandora’s Box would open and “create a lot of problems here” if anyone who claims to hold ministry credentials is allowed to lead prayers.

“These comments reveal . . . an affirmative decision by the commissioners to exclude other prayer givers,” the Appeals Court held.

“The Board of Commissioners, in other words, is limiting who can give the prayers in order to control the prayers’ content. And the effect is preventing participation by religious minorities and endorsing a specific religion.”

Bormuth, who represents himself in court but was supported on appeal by Americans United for Separation of Church and State, said he hoped his victory would be bigger.

“I provided the Sixth Circuit with three legal options,” Bormuth said. “They chose the (one) least broad.”

Appellate Judge Karen Nelson Moore, a Bill Clinton appointee, wrote the majority opinion, joined by Judge Jane Branstetter Stranch, a Barack Obama appointee. Judge Richard Allen Griffin, a George W. Bush appointee, dissented.

Griffin, son of former U.S. Sen. Robert P. Griffin of Michigan, disagreed with the majority on just about every point, and he rejected the idea that only Christian prayers are allowed at Jackson County meetings simply because all commissioners now in office happen to be Christians.

“Were Mr. Bormuth elected to the Jackson County Board of Commissioners . . . he could freely begin a legislative session with a prayer of his choosing – to ‘Mother Earth,’ the sun, the moon (or otherwise),” Griffin wrote.

Jackson County attorney fees in the prayer case are paid by the county treasury, not by liability insurance.

Overton refused to disclose how much money has been spent on lawyer fees before he shares that figure with commissioners Feb. 21. He acknowledged the sum is “considerable.”

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