Last week, the Sixth Circuit granted en banc review in Bormuth v. County of Jackson, where a split panel had held that a district court had erred in rejecting the plaintiff’s argument that the prayer preceding a Michigan county’s Board of Commissioners’ monthly meeting violated the First Amendment by coercing residents to support and participate in the exercise of religion. The panel not only reversed the district court’s grant of summary judgment in favor of the county, but found that the plaintiff was entitled to summary judgment.

The majority identified several factors that distinguished this case from legislative prayers previously found acceptable, including: (1) a legislator—as opposed to a nongovernmental figure like a chaplain—offered the prayer; (2) the content of the prayers was “exclusively Christian because of an intentional decision” of the legislators, who specifically sough to exclude other kinds of prayers from being offered; and (3) the purpose was “to promote religion to the public.”  The majority found that the prayers were unduly coercive because the public was directed to participate, the board singled out the non-participating plaintiff for opprobrium, and the board allocated “benefits and burdens” based on participation.

Judge Griffin dissented, pointing out (among other things) that the majority opinion conflicted with the recent Fourth Circuit in Lund v. Rowan County. The majority cast doubt on the correctness of Lund, distinguished it, and also pointed out that the Fourth Circuit is rehearing it en banc.

We have posted previously on the increasing rarity of en banc review, so the Sixth Circuit’s decision to rehear demonstrates the significance of this case.  Legislative prayers and the Establishment Clause have long been a thorny topic.  We will continue to keep an eye on this case, as well as Lund, which is likely to be reheard first and has the potential to serve as persuasive authority.