Argued: June 14, 2017
from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:13-cv-13726-Marianne
O. Battani, District Judge.
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
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., 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.
Before: COLE, Chief Judge; BATCHELDER, MOORE, CLAY, GIBBONS,
ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE,
STRANCH, DONALD, and THAPAR, Circuit Judges. [*]
GRIFFIN, Circuit Judge.
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 Constitution because the Commissioners themselves
offer the invocations. We disagree and affirm the judgment of
the district court.
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 Town of Greece v. Galloway, 134
S.Ct. 1811 (2014), and does not violate the Establishment
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.
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
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 take them through difficult times. We ask
these things in your son Jesus's name. Amen.
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.
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
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
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
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
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.).
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.
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).
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.
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.").
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 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
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.
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).
these reasons, we decline to consider the videos presented
for the first time on appeal by amicus, and then by Bormuth
in his reply.
is one more preliminary matter to resolve at the outset,
relating to a discovery issue. 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
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 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).
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.
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.
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 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).
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
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.
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.
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.
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.
the Nebraska Legislature selected a chaplain of the same
denomination for sixteen consecutive years was of no moment:
"Absent proof that the chaplain's reappointment
stemmed from an impermissible motive, " one could not
"perceive any suggestion that choosing a clergyman of
one denomination advances the beliefs of a particular
church." Id. at 793. Nor was it material that
public funds paid for the chaplain, given that the
Continental Congress did the same. Id. at 794. And
finally, the Supreme Court cautioned against the judiciary
"embark[ing] on a sensitive evaluation or . . .
pars[ing] the content of a particular prayer."
Id. at 795. That is, "[t]he content of the
prayer is not of concern to judges where . . . 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.
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.
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
[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 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.
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.
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. McCarty,
851 F.3d 521, 527 (5th Cir. 2017) (applying Town of
Greece to prayers before school boards).
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.
* * *
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
Id. at 1823 (quoting Marsh, 463 U.S. at
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 Godfearing
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.
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
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. 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.
paragraph, the three Justices discussed hypothetical facts
that could change their analysis:
The analysis would be different if town board members
directed the public to participate in the prayers, singled
out dissidents for opprobrium, or indicated that their
decisions might be influenced by a person's acquiescence
in the prayer opportunity. No such thing occurred in the town
of Greece. Although board members themselves stood, bowed
their heads, or made the sign of the cross during the prayer,
they at no point solicited similar gestures by the public.
Respondents point to several occasions where audience members
were asked to rise for the prayer. These requests, however,
came not from town leaders but from the guest ministers, who
presumably are accustomed to directing their congregations in
this way and might have done so thinking the action was
inclusive, not coercive. Respondents suggest that
constituents might feel pressure to join the prayers to avoid
irritating the officials who would be ruling on their
petitions, but this argument has no evidentiary support.
Nothing in the record indicates that town leaders allocated
benefits and burdens based on participation in the prayer, or
that citizens were received differently depending on whether
they joined the invocation or quietly declined. In no
instance did town leaders signal disfavor toward
nonparticipants or suggest that their stature in the
community was in any way diminished. A practice that
classified citizens based on their religious views would
violate the Constitution, but that is not the case before
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).
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:
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
* * *
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
Id. at 1838 (alterations in original and internal
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
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.
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
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. 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 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).
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