Bormuth v. Jackson, County of
Filing
61
OPINION AND ORDER OVERRULING THE PLAINTIFFS 51 OBJECTIONS, OVERRULING IN PART AND SUSTAINING IN PART DEFENDANTS 53 OBJECTIONS, ADOPTING IN PART THE 50 REPORT AND RECOMMENDATION, GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Signed by District Judge Marianne O. Battani. (KDoa)
UNTIED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PETER BORMUTH,
Plaintiff,
CASE NO. 2:13-cv-13726
v.
HON. MARIANNE O. BATTANI
COUNTY OF JACKSON,
Defendant.
_______________________ __________/
OPINION AND ORDER OVERRULING THE PLAINTIFF’S OBJECTIONS,
OVERRULING IN PART AND SUSTAINING IN PART DEFENDANT’S
OBJECTIONS, ADOPTING IN PART THE REPORT AND RECOMMENDATION,
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
The present case arises from Plaintiff Peter Bormuth’s (“Bormuth’s”)
Establishment Clause challenge to Defendant County of Jackson’s (“Jackson’s”)
practice of opening its Board of Commissioner meetings with prayer invocations
delivered by members of the Board. Before the Court are Bormuth’s and Jackson’s
objections to Magistrate Judge Hluchaniuk’s March 31, 2015, Report and
Recommendation ("R&R"). (Docs. 51, 53.) In the R&R (Doc. 50), the Magistrate Judge
recommended that the Court grant Bormuth’s motion for summary judgment (Doc. 37)
and deny Jackson’s motion for summary judgment (Doc. 25). For the reasons that
follow, the Court OVERRULES Bormuth’s objections, OVERRULES IN PART AND
SUSTAINS IN PART Jackson’s objections, ADOPTS IN PART the R&R, GRANTS
Jackson’s Motion for Summary Judgment, and DENIES Bormuth’s Motion for Summary
Judgment.
I.
STATEMENT OF FACTS
As the parties have not objected to the R&R’s recitation of the facts, the Court
adopts that portion of the R&R. (See Doc. 50, pp. 2-6.)
II. STANDARD OF REVIEW
A. Report and Recommendations
Pursuant to statute, this Court's standard of review for a magistrate judge's report
and recommendation requires a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made. 28 U.S.C.
§ 636(b)(1)(C). A judge of the court may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge. Id.
B. Summary Judgment
Summary judgment is appropriately rendered “if the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Redding v. St. Eward, 241 F.3d 530, 532 (6th
Cir. 2001). The court must determine “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” State Farm Fire & Cas. Co. v. McGowan, 421 F.3d
433, 436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986)). The evidence and all reasonable inferences must be construed in the light
most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
Where the movant establishes the lack of a genuine issue of material fact, the
burden of demonstrating the existence of such an issue shifts to the non-moving party
to come forward with “specific facts showing that there is a genuine issue for trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). That is, the party opposing a
motion for summary judgment must make an affirmative showing with proper evidence
and must “designate specific facts in affidavits, depositions, or other factual material
showing ‘evidence on which the jury could reasonably find for the plaintiff.’” Brown v.
Scott, 329 F. Supp. 2d 905, 910 (6th Cir. 2004). In order to fulfill this burden, the nonmoving party need only demonstrate the minimal standard that a jury could ostensibly
find in his favor. Anderson, 477 U.S. at 248; McLean v. 988011 Ontario, Ltd., 224 F.3d
797, 800 (6th Cir. 2000). However, mere allegations or denials in the non-movant’s
pleadings will not satisfy this burden, nor will a mere scintilla of evidence supporting the
non-moving party. Anderson, 477 U.S. at 248, 251.
III. DISCUSSION
A. Sectarian Prayer
As a preliminary matter, the Court briefly addresses Bormuth’s objection that the
Magistrate Judge failed to determine the merits of the case in accordance with the
Treaty of Tripoli of 1797. The Court agrees with the Magistrate Judge’s conclusion that
the Treaty of Tripoli is nothing more than a confirmation that the treaty was executed by
the United States not as a religious power but as a secular state. Frank Lambert, The
Founding Fathers and the Place of Religion in America 11 (2006) (“The assurances . . .
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were intended to allay the fears of the Muslim state by insisting that religion would not
govern how the treaty was interpreted and enforced . . . . [and] that the pact was
between two sovereign states, not between two religious powers."). Therefore, the
appropriate authority controlling this case is the First Amendment.
Though the Establishment Clause mandates government neutrality amongst
religions, the Supreme Court has carved out a narrow exception to this guaranty in the
case of legislative prayer. Marsh v. Chambers, 463 U.S. 783, 796 (1983) (Brennan, J.,
dissenting). In light of the historical tradition of legislative prayer tracing back to the
First Congress, the Supreme Court found counstitutional the Nebraska Legislature’s
practice of opening its sessions with prayer delivered by an official chaplain who had
held this position for sixteen consecutive years. Id. at 794-95. In deciding this case, the
court did not apply the familiar tripartite test set forth in Lemon v. Kurtzman, 403 U.S.
602 (1971) but rather introduced the following standard:
The content of the prayer is not of concern where, as here, 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. That being so,
it is not for us to embark on a sensitive evaluation or to parse the content
of a particular prayer.
Id. Likewise, following Marsh, the Sixth Circuit expressly declined to apply the Lemon
test in a case involving legislative prayer. Jones v. Hamilton County Gov’t, 530 F. App’x
478, 487 (6th Cir. 2013). Contrary to Bormuth’s objection, the fact that the prayer at
issue in this case is government speech does not place it within the realm of the Lemon
test. See Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 288 (4th
Cir. 2005) (applying the standard set forth in Marsh after finding prayers delivered by
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chaplains to be government speech). Therefore, the Court agrees with the Magistrate
Judge’s conclusion that the Lemon test does not apply in the present case.
The Supreme Court later confronted a case challenging the constitutionality of a
religious holiday display at a government building. County of Allegheny v. ACLU, 492
U.S. 573, 597-80 (1989). The court distinguished the outcome of Allegheny from that in
Marsh by noting that the legislative prayer at issue in Marsh was nonsectarian in that it
had “removed all references to Christ.” Id. at 603 (“Indeed, in Marsh itself, the Court
recognized that not even the ‘unique history’ of legislative prayer can justify
contemporary legislative prayers that have the effect of affiliating the government with
any one specific faith or belief.”) (citations omitted) (quoting Marsh, 463 U.S. at 793
n.14). In the wake of Allegheny, many courts’ decisions were therefore premised on the
understanding that sectarian legislative prayer amounts to a constitutional violation.
See, e.g., Joyner v. Forsyth County, 653 F.3d 341, 348-49 (4th Cir. 2011); Hinrichs v.
Bosma, 440 F.3d 393, 401-02 (7th Cir. 2006), rev’d on other grounds, 506 F.3d 584;
Wynne v. Town of Great Falls, 376 F.3d 292, 301 (4th Cir. 2004); Hudson v. Pittsylvania
County, No. 4:11cv00043, 2013 U.S. Dist. LEXIS 43012 at *31-32 (W.D.Va. March 27,
2013).
Most recently, the Supreme Court has dismantled this line of jurisprudence in
Town of Greece v. Galloway. 134 S. Ct. 1811 (2014). Greece scrutinized the
constitutionality of a town’s practice of opening its monthly board meetings with an
invocation delivered by a local clergyman. Id. at 1816. The town solicited guest
chaplains by placing calls to local congregations listed in a local directory, ultimately
compiling a list of willing chaplains. Id. Although the town never excluded or denied an
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opportunity to deliver the invocation, nearly all of the local congregations were Christian
and, consequently, so too were the guest chaplains. Id. Accordingly, the content of the
invocations frequently made sectarian references to Jesus and the Christian faith. Id.
The town never reviewed the content prior to the board meetings or provided guidance
on the content. Id.
Beginning with a summary of Marsh’s historical analysis of legislative prayer, the
Supreme Court’s decision in Greece repudiated the notion that legislative prayer must
be completely nonsectarian in order to pass constitutional muster. Id. at 1820 (“An
insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not
consistent with the tradition of legislative prayer outlined in the Court’s cases.”). The
decision proceeded to dismiss Allegheny’s interpretation of Marsh as mere dictum “that
was disputed when written” and that is “irreconcilable with the facts of Marsh.” Id. at
1821 (“Marsh nowhere suggested that the constitutionality of legislative prayer turns on
the neutrality of its content.”). The Court reasoned that to hold otherwise would compel
legislatures and reviewing courts to censor religious speech, leading to a far greater
degree of governmental entanglement with religion than to allow sectarian prayer. Id. at
1822. Nor did Greece find problematic the fact that the guest chaplains invited to
deliver invocations were predominantly Christian, as it was merely representative of the
town’s demographic. Id. at 1824 (“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.”). Nonetheless, Greece imposed the following constraints
on the content of legislative prayer, similar to the standard set forth in Marsh:
If the course and practice over time shows that the invocations denigrate
nonbelievers or religious minorities, threaten damnation, or preach
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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.
...
Absent 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.
Id. at 1823-24.
Firstly, given the clear holding of Greece, there can be no dispute that the
sectarian and exclusively Christian nature inherent to Jackson’s prayer invocations does
not alone render the practice unconstitutional. The fact that all nine of the
Commissioners are Christian is immaterial. As 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. Like the Town of Greece, Jackson was under no obligation to
ensure representation by all religions. See Greece, 134 S. Ct. at 1824. As argued by
Jackson, the future may bring Commissioners of more diverse religious backgrounds
who will deliver invocations in those traditions. To hold otherwise would contravene
Marsh’s sanction of legislative prayer delivered for sixteen years by a single
Presbyterian clergyman. See 403 U.S. at 793.
Secondly, there has there been no showing that the invocations delivered at
Jackson’s board meetings have denigrated or attempted to proselytize nonbelievers.
Indeed, the content of the invocations incorporates rather benign religious references,
such as blessing America’s troops and requesting divine guidance during deliberation.
Bormuth objects in particular to a prayer entreating God to “[b]less the Christians
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worldwide who seem to be targets of killers and extremists.” He contends that this
prayer was “violently offensive” because of its exclusive protection of Christians. This
hypersensitive interpretation is patently misguided, as the prayer’s sentiment is
innocuous and unlikely to give offense to any reasonable person – the prayer did not
seek to bless Christians to the detriment of non-Christians. Given the respectful tone of
the prayers, the Court finds that they are consistent with the constitutional boundaries
applicable to sectarian legislative prayer as delineated in Greece. This conclusion
comports with the most recent outcome in Joyner v. Forsyth County, which vacated its
previous findings that the sectarian legislative prayer was unconstitutional. See Order,
No. 1:07-cv-00243, M.D.N.C. (Nov. 21, 2014) (Doc. 136) (“[T]he Court will lift the
injunction without prejudice to the Plaintiffs presenting a proper case . . . that
Defendant’s prayer policy represents . . . a constitutional violation as envisioned by
Town of Greece. Such a proper case may also include a claim by Plaintiffs that
Defendant coerces public participation in its legislative prayers.”).
B. Coercion
The more difficult inquiry presented by this case is whether the fact that the
prayer invocations were delivered by government officials rather than by volunteers or
members of the clergy distinguishes this case from the outcome reached in Greece by
rendering the prayer unduly coercive. Many of Jackson’s invocations contained cues
from the Commissioners, such as: “Everyone please stand. Please bow your heads,”
“All rise,” and “All rise and assume a reverent position.” Bormuth maintains that these
directions were commands amounting to coercion by forcing citizens to respect the
Christian religion when they come before the Commissioners on secular business.
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Meanwhile, Jackson contends that no authority subjects invocations delivered by
government officials to a higher standard than those delivered by guest chaplains.
Neither Greece nor Marsh directly confronts this precise question. Accordingly, the
instant case presents a matter of first impression within the Sixth Circuit.
Greece recognized the “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 Allegheny, 492 U.S. at 659). When determining whether a government
entity has coerced the practice of a religion, the inquiry is a fact-sensitive one to be
made on a case-by-case basis. Id. In ultimately determining that the Town of Greece’s
practices were not coercive, the Supreme Court adduced that adults are often
confronted with speech they find disagreeable and that a sense of affront resulting from
exposure to religious views contrary to their own does not give rise to an Establishment
Clause violation. Id. at 1826. The court also considered that any member of the public
was welcome to offer an invocation reflecting his own beliefs; that the prayers were
delivered in the solemn, respectful tradition authorized in Marsh; and that members of
the public were free to leave during the prayer. Id. at 1826-27.
Although the Supreme Court ultimately found that the invocation at issue in
Greece was not coercive, the plurality opinion noted in dicta:
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 . . . . 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 . . . .
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Id. at 1826. While the Court agrees with Jackson that legislative prayer delivered by
government officials themselves is not per se unconstitutional, it is clear from the
cautionary language in the Greece plurality opinion that the identity of the speaker is a
significant factor distinguishing the present case from the reasoning in Greece. See
Lund v. Rowan County, No. 1:13CV207, 2015 U.S. Dist. LEXIS 57840 at *24 (M.D.N.C.
May 4, 2015) (finding the distinction between legislative prayer delivered by clergymen
and prayer delivered by the legislators themselves to be significant for Establishment
Clause purposes). Language from Joyner v. Forsyth County, relied upon by Jackson
for the proposition that the identity of a speaker is immaterial, is taken out of context. In
that case, the Fourth Circuit stated, “With respect to Wynne, the Board is right to
observe that the prayers were delivered by members of the town council. But that fact
was not dispositive. It was the governmental setting for the delivery of sectarian prayers
that courted constitutional difficulty, not those who actually gave the invocation.” See
653 F.3d at 350 (citations omitted). That excerpt simply notes that the basis for the
decision in Wynne v. Town of Great Falls, 376 F.3d 292, rested on the sectarian
references included in the prayer and not on the fact that the prayers were delivered by
government officials. Id. It does not follow, however, that the identity of the speaker is
never pertinent.
Since the Supreme Court decided Greece, at least one other district court has
had the opportunity to confront the issue of sectarian legislative prayer delivered by a
government official. In Lund v. Rowan County, county board meetings were opened
with sectarian prayers delivered by the commissioners, all of whom were Christian. See
2015 U.S. Dist. LEXIS 57840 at *2-3. The prayers frequently began with phrases such
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as “let us pray” or “please pray with me.” From 2007 onwards, because all
commissioners identified as Christian, the invocations were delivered exclusively in the
Christian tradition. Id. at *3. The district court struck down the county’s prayer practice
and distinguished the case from Greece on the grounds that Greece did not concern
legislative prayer delivered by government officials. Id. at *24-30. The court further
determined that because the case did not fall within the legislative prayer exception as
carved out in Marsh and Greece, whether the practice violated the Establishment
Clause must be determined by applying the Lemon and coercion tests. Id. at *33.
Although the court briefly discussed the Lemon test, it decided that the prayer at issue
was unconstitutional by conducting a fact-driven coercion analysis. Id. at 40-45.
Consistent with the above discussion of sectarian prayer, the Court declines to
apply the Lemon test when analyzing whether legislative prayer is coercive. Contrary to
the district court’s finding in Lund, the Court maintains that the present factual
circumstances fall within the legislative prayer exception. That the conclusion in Greece
regarding coercion is not controlling does not remove the present case from the realm
of legislative prayer jurisprudence. As Justice Brennan’s dissent in Marsh
demonstrates, applying the Lemon test in legislative prayer cases would essentially
result in a per se ban on all legislative prayer, even where the majority opinion deemed
it constitutional. See Marsh, 463 U.S. at 797-98 (Brennan, J., dissenting). When
engaging in a coercion analysis, the plurality opinion in Greece did not apply the Lemon
test but rather conducted a fact-sensitive inquiry “that considers both the setting in
which the prayer arises and the audience to whom it is directed.” See Greece, 134 S.
Ct. at 1825. Indeed, the Supreme Court also dispensed with the Lemon test in favor of
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a “psycho-coercion test” when determining that a religious benediction at middle school
graduation placed primary and secondary school students in a coercive situation. See
Lee v. Weisman, 505 U.S. 577, 644 (1992) (Scalia, J., dissenting). Ultimately,
application of the Lemon test is unnecessary because, as recognized in Lund, a
government act that fails the coercion analysis would necessarily also fail the Lemon
test. See 2015 U.S. Dist. LEXIS 57840 at *34. A fact-sensitive inquiry is thus the order
of the day.
Whether the prayer practice at issue is coercive, in spite of potential tension
amongst the implications of certain factual elements, is not a question of fact to be
reserved for trial but rather a legal question. First, the identical issue was decided on
summary judgment in both Greece and Lund. Secondly, in the analogous examination
of whether a city’s inclusion of a crèche in a holiday display communicated an
impermissible endorsement of religion under the Lemon test, Justice O’Connor’s
concurring opinion implied that the issue presented a legal question. See Lynch v.
Donnelly, 465 U.S. 668, 695 (1984) (O’Connor, J., concurring) (“Although evidentiary
submissions may help answer it, the question is, like the question whether racial or sexbased classifications communicate an invidious message, in large part a legal question
to be answered on the basis of judicial interpretation of social facts.”).
Many aspects of the prayer at issue here support a finding that the practice is not
coercive. The prayers “neither chastised dissenters nor attempted lengthy disquisition
on religious dogma.” See Greece, 134 S. Ct. at 1826. Rather, as discussed above, the
content comports with the spirit of solemn, respectful prayer approved in Marsh. See id.
at 1827. Nothing in the record suggests that members of the public are prevented from
12
leaving the meeting room for the duration of the prayer or that their absence would be
remarkable or perceived as disrespectful. See id. Furthermore, should nonbelievers
have chosen to stay for the duration of the prayer, “their quiet acquiescence [would] not,
in light of our traditions, be interpreted as an agreement with the words or ideas
expressed.” Id. Indeed, contrary to Bormuth’s allegations regarding the psychosocial
pressures to join the prayer, neither of these two options “represents an unconstitutional
imposition as to mature adults, who ‘presumably’ are ‘not readily susceptible to religious
indoctrination or peer pressure.’” See id. (quoting Marsh, 463 U.S. at 792).
Accordingly, Bormuth’s subjective sense of affront resulting from exposure to sectarian
prayer is insufficient to sustain an Establishment Clause violation.
Conversely, certain other elements of the legislative prayer in the present case could
be construed as coercive. First, the invocations are delivered exclusively in the
Christian tradition, without the opportunity for members of the public to offer invocations
according to their own convictions. Second, by exercising exclusive dominion over the
content of the prayers, the legislators may be acting as “supervisors and censors of
religious speech,” potentially running afoul of Greece’s caution against excessive
entanglement with religion. See id. at 1822. Third, the Commissioners invited the
public to participate in the prayers by beginning the invocations with statements such as
“Please rise,” “Please bow your heads,” and “Let us pray.” Greece may be interpreted
to imply that such invitations made by government officials are coercive. See id. at
1826 (“The analysis would be different if town board members directed the public to
participate in the prayers . . . .”). As articulated in Lund, members of the public may not
perceive such cues, particularly from the Commissioners, as voluntary invitations that
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may be declined but rather as commands that must be obeyed. See 2015 U.S. Dist.
LEXIS 57840 at *42. See also Hudson, 2014 U.S. Dist. LEXIS 106401 at *6 (finding
legislative prayer delivered by county board members unconstitutional based in part on
the members’ requests that the public stand for the prayer – as directed by one
member, “If you don’t want to hear this prayer, you can leave. Please stand up.”).
Indeed, Bormuth claims that on two occasions, when he addressed the Commissioners
during Board meetings on the subjects of sectarian prayer and abortion, two of the
Commissioners swiveled their chairs and turned their backs to Bormuth while he spoke.
From this analysis, the Court gleans that nothing about the content of these prayers
is objectionable – the trouble arises wholly because of the surrounding circumstances.
However, as discussed supra, the Supreme Court has already determined that
legislative prayer delivered exclusively according to one religious tradition, even over
many years, does not violate the constitution. Marsh, 463 U.S. at 794-95. The
Supreme Court has also decided that requests to rise for sectarian prayer, when
delivered by a guest minister, likewise pass constitutional muster. Greece, 134 S. Ct. at
1826. Had prayers identical to those in the instant case been delivered by a chaplain
rather than the legislators, the Court would not be faced with such a heavy conundrum,
as the outcome in Greece would unquestionably apply. The outcome of the present
case therefore hinges exclusively on the fact that the prayer was delivered by the
Commissioners.
The Court is not persuaded that the legislative prayer at issue here is unduly
coercive based on the identity of the prayer-giver. As a practical matter, nonadherents
had several options available to them: leave for the duration of the prayer; remain for
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the prayer without rising; or remain for the prayer while rising, in which case their
acquiescence would not have been interpreted as agreement with the religious
sentiments. See id. at 1827. It is not clear that the direction to “Please rise” carries
more coercive weight when voiced by the Commissioners themselves than by a guest
chaplain selected by the Board of Commissioners. Although nonadherents to
Christianity such as Bormuth may fear that their business before the Board would be
prejudiced if the Commissioners observed their noncompliance with the request to
stand, the risk of prejudice is no greater if the request is delivered by a Commissioner
than if it is delivered by a guest chaplain. In both situations, the Commissioners are
equally capable of observing those who comply and those who do not. The language in
Greece regarding requests to participate in prayer being made by legislators does not
provide clear guidance on the outcome of this case – it is dicta contained in a plurality
opinion and is therefore not binding. Additionally, the opinion states merely that “[t]he
analysis would be different,” not that the outcome would be different had the instruction
to rise been delivered by one of the legislators. See id. (emphasis added). Bormuth’s
attestation that two Commissioners turned their backs to him during his presentations,
while evidence of disrespect, 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.
Further, in the opinion of this Court, the Commissioners’ development of the prayers’
content does not foster an entanglement with religion. Indeed, the hiring and payment
of an official chaplain as upheld in Marsh may be regarded as a greater governmental
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entanglement with religion than the Commissioners’ rather benign religious references
at issue in the present case. That is, the presence of a religious figure could serve to
strengthen perceived governmental ties to religion, not to distance them. Moreover, if
the Court determined that the constitutionality of a legislative prayer is predicated on the
identity of the speaker, potentially absurd results would ensue. Under such a holding,
an invocation delivered in one county by a guest minister would be upheld, while the
identical invocation delivered in another county by one of the legislators would be struck
down. In light of these considerations, the Court finds that the present legislative prayer
practice is not coercive.
C. Pledge of Allegiance
Bormuth also objects to the Magistrate Judge’s R&R on the grounds that it does not
discuss the Board’s practice of inviting children to lead the Pledge of Allegiance,
immediately following the prayer invocation. Bormuth contends that the children’s
exposure to prayer in the context of a civic meeting forms an indelible connection
between religion and the government in their impressionable minds.
In order to meet the minimum constitutional standards for individual standing,
[A] plaintiff must show (1) it has suffered an “injury in fact” that is (a)
concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 180-81
(2000). Although ordinarily, one may not claim standing to vindicate the rights of some
third party, this rule is not absolute. Smith v. Jefferson County Bd. of Sch. Comm’rs,
641 F.3d 197, 208 (2011). A party may assert the rights of another where "the party
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asserting the right has a 'close' relationship with the person who possesses the right,"
and where "there is a 'hindrance' to the possessor's ability to protect his own interests."
Id. (citing Kowalski v. Tesmer, 543 U.S. 125, 130 (2004)). Here, Bormuth’s claim rests
on the constitutional rights of the children leading the Pledge of Allegiance. There is no
indication anywhere in the record that he had any relationship whatsoever with these
children, let alone a “close” relationship. Moreover, there is no indication that the
children’s ability – or rather their parents’ ability – to protect their own rights is hindered
in any way. Accordingly, Bormuth lacks standing to assert his Establishment Clause
and coercion claims on these grounds.
IV. CONCLUSION
For the reasons articulated above, the Court finds that Jackson’s legislative
prayer practice does not violate the Establishment Clause. Although the Court believes
the better practice would be to exclude legislative prayer from governmental
proceedings altogether, it is constrained to follow the Supreme Court precedents set
forth in Marsh and Greece by upholding the practice presently at issue. Accordingly,
the Court OVERRULES Bormuth’s objections, OVERRULES IN PART AND SUSTAINS
IN PART Jackson’s objections, ADOPTS IN PART the R&R, GRANTS Jackson’s
Motion for Summary Judgment, and DENIES Bormuth’s Motion for Summary Judgment.
IT IS SO ORDERED.
Date: July 22, 2015
s/Marianne O. Battani
MARIANNE O. BATTANI
United States District Judge
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their
respective email addresses or First Class U.S. mail to the non-ECF participants on July 22, 2015.
s/ Kay Doaks
Case Manager
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