Praying for an Answer: The Constitutional Inadequacies with Legislative Prayer in Bormuth v. County of Jackson

Abstract

In Marsh v. Chambers, the Supreme Court ruled that legislative prayer, having a special place in our Nation’s history, did not violate the Establishment Clause. Lower courts, and even the Supreme Court itself, had difficulty understanding the reach and bounds of Marsh. After much confusion, the Supreme Court took up the issue again in Town of Greece v. Galloway. In that case, the Court held that a town board’s practice of having rotating chaplains voluntarily give sectarian prayers before board meetings fell within the ambits of Marsh, even though the majority of the prayers were of one particular religious sect.Now enter the new problem percolating among different jurisdictions: does the identity of the prayer giver change the analysis of Town of Greece and Marsh? That was the issue in Bormuth v. County of Jackson, where a Jackson County citizen challenged the Board’s practice of only allowing the Christian commissioners give opening prayers as being coercive and adverse of the Establishment Clause. The Bormuth district court felt differently, arguing that the prayer-giver identity should not change the analysis.This Article argues that the district court erred in Bormuth v. County of Jackson and that the Board’s prayer practice violates the teachings of Marsh and Town of Greece. Part II recounts the history of legislative prayer from Marsh to Town of Greece. Part III discusses Bormuth v. County of Jackson itself. Part IV analyzes the Board’s prayer practice under Town of Greece and other relevant legislative prayer cases. Part V briefly concludes by saying that the Sixth Circuit should reverse the below ruling.