Legislative Prayer Confusion

Last week, before its summer recess, the United States Supreme Court refused to review a case in which the Sixth Circuit Court of Appeals upheld the Jackson County, Michigan, Board of Commissioners’ practice of starting its meetings with prayer. That is good news. The Supreme Court, however, also refused to hear a case out of the Fourth Circuit Court of Appeals that prohibits legislator-led prayer. That is bad news. As a result, different rules will continue to apply in different parts of the country regarding the legality of legislator-led prayer.

The American Center for Law & Justice (“ACLJ”) filed an amicus curiae(“friend-of-the-court”) brief in the Sixth Circuit supporting Jackson County. We argued that the County’s legislative prayer practice is constitutional. The Sixth Circuit agreed. The Supreme Court did not disturb that decision.

The Sixth Circuit’s ruling is consistent with the arguments set forth in our amicus brief. We argued that Supreme Court precedent permits the offering of sectarian prayers before legislative sessions, as is sometimes the case during the Jackson County Board meetings. We explained that a Commissioner giving an invocation during the ceremonial part of the meetings raises no more constitutional concerns than if the County had rotating clergy give sectarian invocations (a practice that has been upheld by the Supreme Court), or if the County had hired a single clergyman to handle all the invocations (which has also been upheld by the Supreme Court).

Moreover, our brief explained that Jackson County has not forced attendees of the Board meetings to participate in any religious activities. The County requires no citizen to listen to, or participate in, the brief invocations. The invocations do not proselytize or disparage any faith (or belief system), and there is no requirement that anyone show reverence during the prayers or agree with their content.

In contrast to its decision to let stand the Sixth Circuit’s decision, the Supreme Court also decided to let stand a Fourth Circuit decision that does not allow legislator-led prayer. The Fourth Circuit ruled against a North Carolina county’s policy (which is virtually identical to Jackson County’s policy) of allowing commissioners to offer a prayer or a moment of silence at the start of their meetings. The ACLJ filed an amicus brief urging the Supreme Court to review the Fourth Circuit’s decision.

The law regarding legislative prayer will continue to be inconsistent in this country until the Supreme Court eventually overturns the Fourth Circuit’s erroneous precedent. Within the jurisdiction of the Sixth Circuit (that is, Kentucky, Michigan, Ohio, and Tennessee), state and local legislators may lead prayers to open legislative sessions. But, within the jurisdiction of the Fourth Circuit (that is, Maryland, North Carolina, South Carolina, Virginia, and West Virginia), state and local legislators may not.

In their dissent from the Supreme Court’s refusal to review the Fourth Circuit case, Justice Thomas, joined by Justice Gorsuch, explained that the Fourth Circuit’s decision was wrongly decided and contrary to Supreme Court case law (as well as to the Sixth Circuit’s decision) and is also ahistorical. On the latter point, they noted that

[f]or as long as this country has had legislative prayer, legislators have led it. Prior to Independence, the South Carolina Provincial Congress appointed one of its members to lead the body in prayer. Several States, including West Virginia and Illinois, opened their constitutional convention with prayers led by convention members instead of chaplains. The historical evidence shows that Congress and state legislatures have opened legislative sessions with legislator-led prayer for more than a century. In short, the Founders simply “did not intend to prohibit a just expression of religious devotion by the legislators of the nation, even in their public character as legislators.”

Because the Supreme Court did not resolve the conflict between the Fourth and Sixth Circuits, there will be more litigation over legislative prayer. The ACLJ will continue its defense of legislative prayer just as we have defended other forms of public prayer, including the filing of an amicus brief supporting the practice of a California school board opening its meetings with prayer in a case now pending in the Ninth Circuit Court of Appeals.