Supreme Court Sends Mixed Signals on Constitutionality of Prayer Policies

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Visitors stand in line outside the Supreme Court in Washington, U.S., November 27, 2017. |

The United States Supreme Court has declined to hear appeals in two cases regarding local government invocation practices, allowing both a decision that upholds a county prayer policy and a decision that strikes down another.

In an order list released Thursday, the high court declined to hear appeals in the cases of Bormuth v. County of Jackson, Michigan and Rowan County, North Carolina v. Lund, which both centered on questions of county prayer policies.

The Bormuth case centered on the Jackson County Board of Commissioners' invocation policy, which allowed a member of the board to give an opening prayer at meetings.

In 2013, local activist Peter Bormuth, a self-described pagan and animist, sued the Board of Commissioners over their policy. While a three-judge panel of the Sixth Circuit Court of appeals ruled 2-1 in his favor, the full court ruled against.

"The 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," read the Sixth Circuit opinion, released last September.

"Neither other commissioners, nor the as a whole, review or approve the content of the invocations. There is no evidence that the board adopted this practice with any discriminatory intent."

With their denial of appeal, the Supreme Court allowed the Sixth Circuit decision to stand, allowing the board to continue their invocation policy.

While the Rowan County case centered on a similar county invocation policy, this time in North Carolina, the lower court decision was different.

In a decision from July 2017, the Fourth Circuit Court of Appeals ruled against the invocation policy, arguing that it violated the Constitution due to the prayers being almost exclusively Christian in nature.

"We conclude that the Constitution does not allow what happened in Rowan County. The prayer practice served to identify the government with Christianity and risked conveying to citizens of minority faiths a message of exclusion," read the majority opinion.

"Rowan County elevated one religion above all others and aligned itself with that faith. It need not be so. As the history of legislative invocations demonstrates, the desire of this good county for prayer at the opening of its public sessions can be realized in many ways that further both religious exercise and religious tolerance."

Both the Sixth Circuit and Fourth Circuit cases cited the 2014 Supreme Court decision Town of Greece v. Galloway, in which the highest court in the nation ruled 5-4 that a New York county could hold sectarian prayers at the start of official meetings.

While the Sixth Circuit believed that county meeting prayers done by commissioners were protected by Town of Greece, the Fourth Circuit disagreed.

"And because the commissioners were the exclusive prayer-givers, Rowan County's invocation practice falls well outside the more inclusive, minister-oriented practice of legislative prayer described in Town of Greece," continued the Fourth Circuit opinion in the Rowan County case.

For his part, Supreme Court Justice Clarence Thomas wrote a dissent to the high court's decision to not hear an appeal in the Rowan County case, arguing, "The Fourth Circuit's decision is both unfaithful to our precedents and ahistorical. It also conflicts with a recent en banc decision of the Sixth Circuit," wrote Justice Thomas.

"... the Sixth and Fourth Circuits are now split on the legality of legislator-led prayer. State and local lawmakers can lead prayers in Tennessee, Kentucky, Ohio, and Michigan, but not in South Carolina, North Carolina, Virginia, Maryland, or West Virginia. This Court should have stepped in to resolve this conflict."

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