Two federal appeals courts are considering whether elected leaders throughout the Midwest and mid-Atlantic regions must abandon the 200-year-old practice of opening local meetings with an invocation.
Both cases could end up before the Supreme Court by Christmas time.
In one case, a self-described pagan sued the board of commissioners of Jackson County, Michigan, arguing that its tradition of beginning monthly board meetings with an invocation violates the Constitution’s Establishment Clause, the First Amendment provision disallowing government from establishing an official religion.
In 1983, the Supreme Court in Marsh v. Chambers examined Nebraska’s practice of employing a salaried Christian chaplain who offered the Legislature’s invocations for 16 years, and held that “legislative prayers” at policymaking-body meetings are constitutional.
The court noted that the first Congress wrote the Establishment Clause in the same week it passed laws to create a House chaplain and Senate chaplain, whose public duties included offering invocations every day that Congress is in session.
Over the next three decades, some lower courts and academics speculated that Marsh might be a one-off exception to normal Establishment Clause rules. Some argued that invocations must be generic, and therefore mentioning Jesus Christ or making other sectarian references would be unconstitutional.
In 2014, the Supreme Court addressed this confusion by taking another case concerning a New York town where the invocations are offered by local volunteer clergy—all of whom were Christian.
In Town of Greece v. Galloway, the court held that these invocations, too, are constitutional, even if all the prayer-givers happen to be Christian and include sectarian content from a single faith.
But litigation persisted, now focusing on the identity of the prayer-givers.
Plaintiffs argued that invocations given by government officials are unconstitutionally coercive because they might imply that lawmakers will use their official powers against those who refuse to participate in the invocations.
The U.S. Court of Appeals for the 4th Circuit rejected that argument when a three-judge panel ruled 2-1 for the government in Lund v. Rowan County, North Carolina.
However, the Richmond-based appeals court reheard the case in March in a rare en banc proceeding in which all 15 judges participated. It is very possible the en banc court will invalidate Rowan County’s invocations in the next few weeks.
The opposite situation is currently unfolding in Michigan in the case of Bormuth v. County of Jackson.
There, a Clinton-appointed district judge upheld the county’s practice of allowing each of its nine commissioners to rotate having an opportunity to deliver an invocation, each according to his or her personal faith.
Because all nine commissioners are Christian, the plaintiff argues that the resulting Christian invocations violate the Establishment Clause.
A three-judge panel of the U.S. Court of Appeals for the 6th Circuit reversed the lower court’s ruling in a divided 2-1 decision, ruling that such practices are unconstitutional.
But on June 14, attorneys with First Liberty Institute will present arguments as all 15 judges of the Cincinnati-based appeals court rehear that case en banc.
It is very possible that by late this year, a “circuit split” situation could occur between en banc appeals courts.
If that happens, one or both of these cases will become prime candidates for the U.S. Supreme Court to hear in 2018 as a major religious liberty case.
Legislator-led invocations fall within a broad historical tradition going back to the founding of the republic. The Town of Greece decision made clear that the Establishment Clause must be interpreted consistently with what the framers of the Constitution understood to be establishing religion.
Because these invocations do not establish an official religion, as “establishment” has been historically understood, and because the invocations do not require or coerce anyone to participate, they are perfectly constitutional.
If the Supreme Court means to enforce its decision in Town of Greece that centuries-old prayer traditions do not violate the Establishment Clause, then these cases may be at the forefront of a fundamental restoration of religious liberty in America.