Argued: April 19, 2016
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: Gregory M. Lipper, AMERICANS UNITED FOR SEPARATION OF
CHURCH AND STATE, Washington, D.C., for Amicus Curiae.
Richard D. McNulty, COHL, STOKER & TOSKEY, P.C., Lansing,
Michigan, for Appellee.
Bormuth, Jackson, Michigan, pro se.
BRIEF: Gregory M. Lipper, Richard B. Katskee, AMERICANS
UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C.,
for Amicus Curiae.
Richard D. McNulty, COHL, STOKER & TOSKEY, P.C., Lansing,
Michigan, for Appellee. Peter Bormuth, Jackson, Michigan, pro
Before: MOORE, GRIFFIN, and STRANCH, Circuit Judges.
NELSON MOORE, Circuit Judge.
Board of Commissioners in Jackson County, Michigan begins its
monthly meetings with a prayer. Peter Bormuth, a resident of
Jackson County, filed suit against the County asserting that
this prayer practice violates the First Amendment's
Establishment Clause. The district court granted the
County's motion for summary judgment and denied
Bormuth's motion for summary judgment, and Bormuth now
appeals. We hold that the district court erred in rejecting
Bormuth's argument that the prayer practice coerced
residents to support and participate in the exercise of
religion. Accordingly, we REVERSE the
district court's grant of summary judgment to the County
and REMAND for entry of summary judgment in
Bormuth's favor and for further proceedings consistent
with this opinion.
facts in this case are not in dispute. The Jackson County
Board of Commissioners has nine members, including a
Chairman, who are elected by the people of Jackson County. In
addition to overseeing other Jackson County bodies, the Board
of Commissioners holds monthly meetings to address matters of
local concern. Each meeting 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).
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).
is a self-described Pagan and Animist. Id. ¶ 13
(Page ID #63). He believes in the "attribution of
conscious life to objects in and phenomena of nature"
and the "existence of spirits separable from
bodies." Id. (emphasis removed) (internal
quotation marks omitted). Bormuth worships the Sun and the
Moon, as well as ancestral spirits, but his "primary
deity is the Mother Earth." Id. He has written
essays, poetry, and music on the subject. Id. 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.
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 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
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.
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.
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.
agenda for the August 2013 meeting was whether Jackson County
employees with concealed-weapons permits could carry handguns
at work. Id. ¶ 30 (Page ID #68-69). Following a
discussion of Second Amendment rights, the Board of
Commissioners voted in favor of the County employees who
wished to carry handguns at work. See id. During the
public-comment period, Bormuth stood and addressed the Board
of Commissioners, calling attention to what he believed was
an equally important constitutional issue: First Amendment
rights. Id. ¶ 31 (Page ID #69). Bormuth told
the Commissioners that he thought that the monthly prayers
violated the Establishment Clause and criticized the
Commissioners for selectively following the Bill of Rights.
Id. 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. Bormuth filed suit
against the County ten days later, alleging that the prayer
practice violated the Establishment Clause. R. 1 (Compl.)
(Page ID #1).
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).
moved for summary judgment a month later. R. 14 (Pl. First
Mot. for Summ. J.) (Page ID #107). In response, the County
asked the district court to hold the case in abeyance pending
the Supreme Court's decision in Town of Greece v.
Galloway, 134 S.Ct. 1811 (2014). R. 16 (Def. Resp. to
Pl. First Mot. for Summ. J. at 18) (Page ID #173). The
district court did not hold the case in abeyance, but it did
not rule on the motion for summary judgment either, and in
May 2014 the Supreme Court issued its decision in Town of
Greece. The County filed a motion for summary judgment
in light of the Court's opinion. R. 25 (Def. Mot. for
Summ. J.) (Page ID #244). The district court terminated
Bormuth's first motion for summary judgment and invited
him to file a second motion for summary judgment addressing
Town of Greece, which he did. R. 32 (Order
Terminating Mot. at 1-2) (Page ID #430-31); R. 37 (Pl. Second
Mot. for Summ. J.) (Page ID #509).
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 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).
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.
Magistrate Judge considered the County's motion to quash
depositions first. Although not persuaded by the County's
arguments that the information Bormuth sought was immaterial,
the Magistrate Judge granted the motion "because both
sides ha[d] fully briefed their respective summary judgment
motions and responses, and plaintiff ha[d] not indicated the
need for any additional discovery." R. 46 (Order
Granting Mot. to Quash at 6) (Page ID #820). The Magistrate
Judge addressed the parties' motions for summary judgment
in another order, recommending that the district court deny
the County's motion for summary judgment, grant
Bormuth's motion for summary judgment because "the
legislative prayer practice of the Jackson County Board of
Commissioners violates the Establishment Clause, " and
enjoin the Board of Commissioners from "utilizing its
current prayer practice." R. 50 (R. & R. at 39)
(Page ID #914). Finally, the Magistrate Judge denied without
prejudice Bormuth's motions to supplement the record
because the Magistrate Judge had already recommended that the
district court grant summary judgment in Bormuth's favor.
R. 54 (Order Denying Mots. to Suppl. Record at 1) (Page ID
district court rejected the Magistrate Judge's
recommendations. 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
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
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 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).
timely appeals the district court's order granting the
motion to quash, its order denying the second motion to
supplement the record, and its order granting the
County's motion for summary judgment and denying
Bormuth's motion for summary judgment. R. 65 (Notice of
Appeal) (Page ID #1072).
Whether the District Court Abused its Discretion by Granting
the Motion to Quash and Denying the Motion to Supplement the
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) (internal quotation marks
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 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 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
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).
Accordingly, the district court's order denying the
motion to supplement the record was also an abuse of
discretion. However, because we find that Bormuth is entitled
to summary judgment as a matter of law on the record that was
before the district court, both of the district court's
errors are harmless.
Whether the Board of Commissioners' Practice Violates the
considering the merits of Bormuth's arguments, we must
first set forth the framework within which to analyze his
claim. Unfortunately, our sources are limited. There are only
two Supreme Court cases that have considered the
constitutionality of legislative prayer- Marsh v.
Chambers and Town of Greece-and neither one
provides much instruction beyond establishing that
legislative-prayer claims occupy a unique place in First
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. 783, 786 (1983). 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.
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.
(internal quotation marks omitted). 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. Examining the
prayer "against the backdrop of historical practice,
" Town of Greece asked whether the prayer
violated the Establishment Clause by either being sectarian,
id. at 1820, or coercive, id. at 1825
(controlling opinion). The Court found that while sectarian
prayers would not necessarily violate the Establishment
Clause, coercive prayer practices would. Id. at
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 bring the Board of Commissioners'
practice outside the ambit of historically tolerated
legislative prayer. Legislative prayer may fall outside the
bounds of the Establishment Clause if it strays too far from
its traditional purpose and effect-respectful
solemnification-or if it is unconstitutionally coercive.
Id. at 1827 (courts should determine whether
legislative prayers "comport with the tradition of
solemn, respectful prayer approved in Marsh, or
whether coercion is a real and substantial likelihood").
Town of Greece provided several indicators of how a
legislative prayer practice might stray from this traditional
purpose, including patterns of proselytization, denigration,
discrimination, or censorship of religious speech.
Id. at 1821-24. Alternatively, a legislative prayer
practice might be unconstitutionally coercived "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
Closer Look at Marsh and Town of Greece
we must compare the Board of Commissioners' practice to
the practices upheld in Marsh and Town of
Greece in order to determine whether the Board of
Commissioners' practice also falls within the tradition
of legislative prayer, a closer look at both cases is
concerned the Nebraska Legislature's practice of opening
its sessions with a prayer delivered by a chaplain. 463 U.S.
at 784. Although the Nebraska Legislature could choose a new
chaplain biennially, the same chaplain, a Presbyterian
minister, had been giving the prayers for sixteen years.
Id. at 784-85. He was also paid with public funds.
Id. The Supreme Court's opinion provided little
additional detail on the Nebraska Legislature's practice,
instead observing that "[t]he opening of sessions of
legislative and other deliberative public bodies with prayer
is deeply embedded in the history and tradition of this
country." Id. at 786. Indeed, Nebraska had
adopted the practice before it had even achieved statehood.
Id. at 789-90. The Supreme Court concluded that the
Nebraska practice fell within the scope of historically
tolerated legislative prayer and that no features of the
practice-including that the chaplain was paid with public
funds-violated the Establishment Clause. Id. at
Town of Greece
of Greece provides more points of comparison. In 1999,
the Town of Greece started opening its monthly town board
meetings with prayers delivered by local clergy. 134 S.Ct. at
1816. Unlike in Marsh, the clergy were volunteers
whom the town typically contacted through their local
congregations. Id. Although the town never
"excluded or denied an opportunity to a would-be prayer
giver, " the town recruited exclusively Christian clergy
for eight years. Id. Susan Galloway and Linda
Stephens, residents of the Town of Greece, attended the
monthly board meetings and objected to the prayers'
Christian content. Id. at 1817. In response, the
town invited a Jewish layman and the chairman of the local
Baha'i temple to offer invocations. Id. The town
also accepted a request to deliver a prayer from a Wiccan
priestess, who had read about the controversy in the news.
and Stephens filed a complaint alleging that the town's
practice violated the Establishment Clause "by
preferring Christians over other prayer givers and by
sponsoring sectarian prayers, such as those given 'in
Jesus' name.'" Id. (quoting
Galloway v. Town of Greece, 732 F.Supp.2d 195, 203
(W.D.N.Y. 2010)). They did not, however, seek to enjoin the
town's practice in its entirety, "but rather
requested an injunction that would limit the town to
'inclusive and ecumenical' prayers that referred only
to a 'generic God' and would not associate the
government with any one faith or belief." Id.
(quoting Galloway, 732 F.Supp.2d at 210, 241).
Galloway and Stephens believed "that the setting and
conduct of the town board meetings create[d] social pressures
that force[d] nonadherents to remain in the room or even
feign participation in order to avoid offending the
representatives who sponsor[ed] the prayer and . . . vote[d]
on matters citizens [brought] before the board."
Id. at 1820. They further argued that "[t]he
sectarian content of the prayers compound[ed] the subtle
coercive pressures . . . because the nonbeliever who might
tolerate ecumenical prayer [was] forced to do the same for
prayer that might be inimical to his or her beliefs."
Id. The district court found no Establishment Clause
violation, Galloway, 732 F.Supp.2d at 243, and the
Second Circuit reversed, Galloway v. Town of Greece,
681 F.3d 20, 34 (2d Cir. 2012).
Supreme Court reversed the Second Circuit in an opinion
written by Justice Kennedy. The first half of Justice
Kennedy's opinion, which garnered a majority of the
Court, held that Galloway and Stephens's 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). Indeed,
the Court noted that the prayers given by one of the
Senate's first chaplains were sectarian and warned that
"[t]he decidedly Christian nature of these prayers must
not be dismissed as the relic of a time when our Nation was
less pluralistic than it is today." Id.
Court also expressed concern that Galloway and Stephens's
proposed cure would be worse than the disease:
To hold that invocations must be nonsectarian 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. The Court was quick to note, 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 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." Id. at
second half of Justice Kennedy's opinion, which was
joined by only two other Justices, considered Galloway and
Stephens's argument that the town's practice was
coercive- specifically, that 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 v. Am. Civil Liberties Union Greater
Pittsburgh Chapter, 492 U.S. 573, 659 (1989) (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 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.
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. The
opinion further noted that "[n]othing 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, " and finally, that
"[i]n no instance did town leaders signal disfavor
toward nonparticipants or suggest that their stature in the
community was in any way diminished." Id.
we determine whether the Board of Commissioners' practice
falls within the bounds of historically tolerated legislative
prayer, we must take a short detour. As noted above, the
Court in Town of Greece was divided: although four
Justices signed on to the first half of Justice Kennedy's
opinion, only two Justices signed on to the second half.
Thus, while Justice Kennedy's analysis of the
respondents' content-based argument garnered a majority
of the Court, Justice Kennedy's analysis of the
respondents' coercion argument did not. Complicating
matters, Justice Thomas filed an opinion concurring in part
and concurring in the judgment, which Justice Scalia joined,
advancing a different theory as to the kind of coercion
required to violate the First Amendment's Establishment
a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent 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 v. United
States, 430 U.S. 188, 193 (1977) (quoting Gregg v.
Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of
Stewart, Powell, and Stevens, JJ.)). Thus, we must determine
whether Justice Kennedy's or Justice Thomas's
conception of coercion constitutes the narrowest grounds.
the Supreme Court has applied the "narrowest
grounds" rule a number of times, most extensively in
Marks v. United States and Gregg v.
Georgia, it has never actually defined the term.
Accordingly, we undertook the task in United States v.
Cundiff, which applied the "narrowest grounds"
rule to Rapanos v. United States, 547 U.S. 715
(2006), in order to answer a jurisdictional question.
Cundiff, 555 F.3d 200, 208-09 (6th Cir. 2009). After
a detailed examination of Marks and Gregg,
As these cases indicate-and contrary to assertions by the
Cundiffs and their amici-Marks does not imply that
the "narrowest" Rapanos opinion is
whichever one restricts jurisdiction the most. But it also
makes little sense for the "narrowest" opinion to
be the one that restricts jurisdiction the least, as the
government's amici allege; the ability to glean
what substantive value judgments are buried within
concurring, plurality, and single-Justice opinions would
require something like divination to be performed accurately.
Instead, "narrowest" opinion refers to the one
which relies on the "least" doctrinally
"far-reaching-common ground" among the Justices in
the majority: it is the concurring opinion that offers the
least change to the law.
Id. at 209 (internal citation omitted). An
examination of Gregg and Marks confirms our
understanding of the rule.
interpreted the Supreme Court's decision in Furman v.
Georgia, 408 U.S. 238 (1972), where a majority of the
Court held that Georgia's death penalty was
unconstitutional. See Gregg, 428 U.S. at 168-69. The
Furman Court, however, could not agree on a
rationale. The five Justices in the majority all filed
separate concurring opinions: Justices Douglas, Stewart, and
White concluded that the death penalty was unconstitutional
as applied; Justices Brennan and Marshall concluded it was
per se unconstitutional. Gregg held that
"[s]ince five Justices wrote separately in support of
the judgments in Furman, the holding of the Court
may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds-Mr.
Justice Stewart and Mr. Justice White." Id. at
interpreted Memoirs v. Massachusetts, 383 U.S. 413
(1966), a similarly fractured opinion which reversed a state
court's declaration that a book was obscene.
Marks, 430 U.S. at 193. In order to determine which
Memoirs opinion was based on the narrowest grounds,
Marks broke Memoirs down into its
constituent parts. Id. at 193-94. In
Memoirs, Justice Brennan, joined by Chief Justice
Warren and Justice Fortas, wrote the opinion reversing the
state court, Justices Black and Stewart concurred in the
reversal for reasons stated in prior dissenting opinions, and
Justice Douglas wrote a separate opinion concurring in the
judgment. Marks concluded that Justice Brennan's
plurality opinion represented the narrowest grounds.
Id. Before Memoirs, the controlling opinion
on obscenity defined "obscene material" as
"material which deals with sex in a manner appealing to
prurient interest." Roth v. United States, 354
U.S. 476, 487 (1957). Justice Brennan's
plurality opinion set forth a three-part test which
incorporated this definition of obscenity. Marks,
430 U.S. at 193-94. The other Justices concurred based on
their belief either that only hard-core pornography can be
suppressed, or that the First Amendment provides an absolute
shield against restrictions of obscene material. Id.
Justice Brennan's plurality opinion, therefore,
"offer[ed] the least change to the law."
Cundiff, 555 F.3d at 209.
Marks and Gregg with Cundiff, we
are left with one question: which analysis of coercion in
Town of Greece-Justice Kennedy's or Justice
Thomas's-"relies on the least doctrinally
far-reaching-common ground among the Justices in the
majority?" Cundiff, 555 F.3d at 209 (internal
quotation marks omitted). The answer is Justice Kennedy's
analysis. Although Justice Thomas's conception of
coercion is more restrictive, Justice Kennedy's
conception of coercion "offers the least change to the
discussed above, Justice Kennedy's opinion in Town of
Greece states 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, '" a quote the opinion draws from
County of Allegheny v. American Civil Liberties Union
Greater Pittsburgh Chapter. Town of Greece, 134
S.Ct. at 1825 (controlling opinion) (quoting Cty. of
Allegheny, 492 U.S. at 659 (Kennedy, J., concurring in
judgment in part and dissenting in part)). Justice
Kennedy's opinion further supports this statement with a
citation to the plurality opinion in Van Orden v.
Perry, where the Supreme Court held that
"institutions must not press religious observances upon
their citizens." Id. (quoting Van
Orden, 545 U.S. 677, 683 (2005)). After finding no
coercion in the record, Justice Kennedy's opinion
observes 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. Thus, Justice Kennedy's opinion leaves the door
open to coercion-based challenges to legislative prayer based
on context and setting.
Thomas's opinion concurring in part and concurring in the
judgment states that "the municipal prayers at issue in
this case bear no resemblance to the coercive state
establishments that existed at the founding."
Id. at 1837. Justice Thomas's opinion continues:
"The coercion that was a hallmark of historical
establishments of religion was coercion of religious
orthodoxy and of financial support by force of law and
threat of penalty." Id. (emphasis in
original) (quoting Lee v. Weisman, 505 U.S. 577, 640
(1992) (Scalia, J., dissenting)). The remainder of Justice
Thomas's opinion cites only Justice Thomas's previous
concurrences from cases where there were controlling majority
or plurality opinions. Id. at 1837-38. Whatever the
merits of Justice Thomas's arguments, he does not cite
any controlling law to support them. Indeed, in his opinion
concurring in the judgment in Elk Grove Unified School
District v. Newdow, Justice Thomas criticizes the
Supreme Court's concern with "subtle coercive
pressure" in the Establishment Clause context,
acknowledging that the Court has not accepted his conception
of the kind of coercion required to violate the Establishment
Clause. 542 U.S. 1, 45-46 (2004) (Thomas, J., concurring in
the judgment) (quoting Lee, 505 U.S. at 592).
Admittedly, the precise role of coercion in an Establishment
Clause inquiry is unclear, especially within the context of
legislative prayer. In that sense, both Justice Kennedy's
and Justice Thomas's opinions involve at least some
departure from the state of the law as it existed before
Town of Greece. However, given that there is
controlling precedent supporting Justice Kennedy's
opinion and no controlling precedent supporting Justice
Thomas's concurrence, Justice Thomas's concurrence is
neither the "the least doctrinally far-reaching-common
ground among the Justices in the majority, " nor the
"opinion that offers the least change to the law."
Cundiff, 555 F.3d at 209 (internal quotation marks
omitted). What is more, when viewed within the context of the
majority's holding, Justice Kennedy's opinion clearly
represents the narrowest grounds. The majority's holding
was that there was no coercion. According to Justice Kennedy,
this was because there was no coercion in the
record. According to Justice Thomas, this was because
there could never be coercion absent formal legal
compulsion. Within the context of a ruling against the
respondents, therefore, the narrower opinion is Justice
Kennedy's, not Justice Thomas's. Accordingly, Justice
Kennedy's conception of coercion is the holding of the
Court under binding Sixth Circuit precedent.
Whether the Board of Commissioners' Practice Falls Within
the Tradition of Legislative Prayer
turn to whether the Board of Commissioners' practice
falls within the tradition of legislative prayer. It does
not. 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. 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).
prayer at the local level falls far afield of the historical
tradition upheld in Marsh and Town of
Greece. The setting of the prayer practice by the
Jackson County Board of Commissioners-a local governing body
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. See infra at 33-34
[¶¶ 68-69]; see also 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).
Whether the Board of Commissioners' Practice Strays from
the Traditional Purpose and Effect of Legislative Prayer:
identity of the prayer giver distinguishes the Board of
Commissioners' practice from the practices upheld in
Marsh and Town of Greece and 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. See id. And because that
content is exclusively Christian, by delivering the prayers,
the Commissioners are effectively endorsing a specific
are no opportunities for persons of other faiths to
counteract this endorsement by offering invocations. In
Town of Greece, the Supreme Court upheld the
town's prayer practice in large part because it included
prayers 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." Town of
Greece, 134 S.Ct. 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, there is no
opportunity for members of other faiths to offer invocations.
Instead, there are exclusively Christian prayer givers and a
pattern of explicitly Christian prayers.
more, the prayer givers are exclusively Christian because of
an intentional decision by the Board of Commissioners. Unlike
in Town of Greece, where the Court found no evidence
of sectarian motive in the selection of speakers, at least
one Jackson County Commissioner admitted that, in order to
control the prayers' content, he did not want to invite
the public to give prayers. At a November 2013 meeting of the
Personnel & Finance Committee, one of the Commissioners
imagined what would happen if any Jackson County resident
could lead the prayer:
We all know that any one of us could go online and become an
ordained minister in about ten minutes. Um, so if somebody
from the public wants to come before us and say that they are
an ordained minister we are going to have to allow them as
County of Jackson, Personnel & Finance Committee
November 12, 2013 Jackson County, MI, YouTube (Dec. 19,
(37:47-38:01). He continued:
And I think we are opening a Pandora's Box here because
you are going to get members of the public who are going to
come up at public comment and we are going to create a lot of
problems here when certain people come up here and say things
that they are not going to like.
Id. at 38:02-38:16. These comments reveal that the
Board of Commissioners' control over the content of the
prayers is not just a function of the Commissioners' role
as prayer givers-it is the result of an affirmative decision
by the Commissioners to exclude other prayer
givers. 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. This brings the County's use of prayer
to open its monthly meetings well outside the ambit of
historically tolerated legislative prayer.
offers another way in which the Board of Commissioners'
practice differs from previously upheld practices: its
purpose is to promote religion to the public. The Supreme
Court found that the prayers in Town of Greece were
"intended to place town board members in a solemn and
deliberative frame of mind, " 134 S.Ct. at 1816, and
that this was in line with historical practice, as the
purpose of legislative prayer is to "accommodate the
spiritual needs of lawmakers, " id. at 1826
(controlling opinion). Amicus contends, however, that the
Jackson County Commissioners cannot claim that their prayers
are purely "an internal act." Id. at 1825
(quoting Chambers, 504 F.Supp. at 588). According to
Amicus, "[t]he only meeting of the full Board
of Commissioners during the past two years when no prayer was
offered was the meeting that no members of the public
attended." Amicus Br. at 12 (citing 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)). Thus, although
Town of Greece stated that prayer should not be used
"to afford government an opportunity to proselytize or
force truant constituents into the pews, " 134 S.Ct. ...