Amona Al-Refaei, Associate Member, University of Cincinnati Law Review,
The Establishment Clause of the First Amendment prohibits the government from establishing a national religion or unduly favoring one religion over another. However, the Supreme Court permits the practice of state actors beginning legislative meetings with prayers by guest ministers. The Supreme Court recognized these prayers do not have to be nonsectarian and prayer in legislative meetings should be interpreted by referencing to historical practices and understandings. In its most recent opinion on the issue, the Supreme Court in Town of Greece, held legislative prayers did not violate the Establishment Clause even though the majority of ministers were Christian because the town was not required to search beyond its borders for non-Christian ministers to achieve religious balancing. This year, the Fourth Circuit in Lund v. Rowan County distinguished minister-led prayer from legislative-led prayers. The Fourth Circuit held legislative-led prayer violated the Establishment Clause because the prayers placed Christianity on a higher plane than other faiths and urged attendees to embrace Christianity, which demonstrated a clear effort to promote religious observance in the public. However, the Sixth Circuit in Bormuth v. Cnty. Of Jackson held the prayer practice of the board of commissioners fit within the tradition followed by Congress and state legislatures, and did not violate the Establishment Clause. The Sixth Circuit’s decision is more consistent with the Establishment Clause because it protects the traditional practice of beginning legislative meetings with prayer and does not over broadly apply the Establishment Clause.
Lund v. Rowan County
Each Rowan County Board meeting began with a prayer composed and delivered by one of the commissioners. The chairperson asked everyone in attendance to stand and bow their heads. A commissioner asked the community to join him in worship by stating “Let us pray,” “Let’s pray together,” or “Please pray with me.” There is a long-standing custom that the opportunity to lead the prayer is rotated only among Board members. Moreover, the prayers are unmistakably Christian in content, with over 97% of the Board’s prayers mentioning “Jesus,” “Christ,” or the “Savior.” No other religion was represented. Some prayers implied Christianity was superior to other faiths and Board members seemed to implore attendees to accept Christianity.
The Fourth Circuit concluded the identity of the prayer-giver is relevant to the constitutional inquiry. The court did not use a formal test, but rather held Establishment Clause questions are matters of degree, allowing legislative prayer to be acceptable in some circumstances and unconstitutional in others. The Fourth Circuit stated the Supreme Court has not defined the precise boundaries of the Establishment Clause. Moreover, the historical principles articulated by the Supreme Court do not direct a particular result and courts must conduct a fact-sensitive review of the prayer practice. The court emphasized the elected members of the board prevented anyone else from offering invocations. The court also found it troubling that the only recourse for members of other faiths, is to elect a commissioner with similar religious views. The court feared that failure to follow the majority faith could be a campaign issue, which could deter members of a minority faith from seeking office. The Fourth Circuit did not use a formal test to complete its constitutional analysis, but based its holding on the circumstances of the legislative prayers in the county. The accumulation of the facts led the court to believe “the county simply went too far.”
Bormuth v. County of Jackson
The Jackson County Board of Commissions began each of its monthly meetings with Commissioner-led prayers. The Board’s chairman typically requested commissioners and the public to “rise and assume a reverent position.” Then one of the commissioners offered a prayer. Each elected Jackson County Commissioners rotated the opportunity to open a session with a short invocation based on the dictates of their own conscience, regardless of the commissioner’s religion. The Sixth Circuit court held the prayer practice fit within the tradition followed in Congress and state legislatures recognized by the Supreme Court. The court cited Town of Greece stating legislative prayer “has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of ‘God save the United States and this honorable Court’ at the opening of [the Supreme Court’s (and Sixth Circuit’s)] sessions.”
The Sixth Circuit court held the Lemon test inapplicable to legislative prayer cases and using it would “rewrite thirty-plus years of Supreme Court jurisprudence.” The court emphasized the Supreme Court sustained legislative prayer without subjecting the practice to any of the formal tests traditionally used. Instead, the Sixth Circuit followed the Supreme Court’s analysis in Marsh and Town of Greece to look at the prayers through history’s lens. The court focused on this historical grounding and Supreme Court ruling to conclude the practice of legislative prayer is consistent with the Framers’ understanding of the Establishment Clause.
Why the Identity of the Prayer-Giver is Not Outcome Determinative
In creating the Establishment Clause, the Founders did not intend to prohibit an expression of religious devotion by legislators. Therefore, the Establishment Clause should not prohibit local governments from utilizing a practice that has been significant throughout the nation’s history and tradition. As the dissent notes in Lund, there are a number of states and territories that have enacted legislation to recognize and protect the historical practice of lawmaker-led prayer. Moreover, the federal government seems to validate lawmaker-led prayer as both houses of Congress allow members to deliver an opening invocation.
The most compelling argument in support of legislator-led prayers is the deep historical roots that legislative prayer has in the nation. The Continental Congress began its sessions with a prayer by a paid chaplain, and the First Congress authorized the appointment of paid chaplains to start each session. This history shows the Founders did not view legislative prayers as a violation of the Establishment Clause.. The Supreme Court held the purpose of legislative prayer is to remind legislators of a higher purpose and to express a common aspiration to establish a peaceful society. Additionally, these prayers have historically been permitted because adult citizens can tolerate prayer delivered by a person of a different faith.
When prayer opportunities are limited to elected officials, it should not necessarily change the outcome of the constitutional analysis. The Sixth Circuit was correct in noting neither Supreme Court opinion restricts who may give prayers in order to be consistent with historical practice. In Lund, the court was incorrect to find legislative prayer is unconstitutional when the ability to lead the prayer is limited to legislators. Such a holding would place too much weight upon the prayer-giver, thereby leaving the words of the prayer almost irrelevant. Following Lund, a prayer led by a hired minister would be constitutional, but it would be unconstitutional if a legislator led the same prayer.
Finally, there is no violation of the Establishment Clause even when the prayers are based on one religion. Although some citizens may be offended if legislator-led prayers consist largely, or solely, of Christian ideology, the Supreme Court stated creed-specific prayers alone do not violate the First Amendment. There should not be an Establishment Clause issue as long as the legislative body does not have a policy of discriminating against potential candidates based on their religious beliefs. Additionally, requiring legislative prayers to be nonsectarian would require legislatures to censor religious speech.
Simply exposing individuals to prayers they would rather not hear does not make legislator-led prayers coercive. The purpose of legislative prayers accepted by the Supreme Court indicates the audience of these prayers is the legislatures themselves. Moreover, asking the public to rise for the prayer does not make the prayers coercive because those in attendance can simply refrain from participating by remaining seated. But, under some circumstances legislative prayers may become coercive. For example, legislative prayer would likely be unconstitutional if members of the public who do not to participate in the prayers were not allowed to voice their concerns or opinions to their legislative representatives.
Legislators outside of the Fourth and Sixth Circuits may now be concerned about beginning meetings with prayers. Fortunately, the Sixth Circuit’s opinion is more consistent with the Establishment Clause and Supreme Court precedent. The Sixth Circuit followed the Supreme Court’s historical view of legislative prayer and its purpose, whereas the Fourth Circuit used a fact sensitive analysis. The Fourth Circuit’s interpretation provides too much discretion to determine the constitutionality of a practice accepted by the Founders and protected by the Supreme Court.
 The First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” USCS Const. Amend. 1.
 Town of Greece v. Galloway, 134 S. Ct. 1811, 1815 (2014).
 Id. at 1820. “The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.” Marsh v. Chambers, 463 U.S. 783, 786 (1983). See also, “the Framers considered legislative prayer a benign acknowledgment of religion’s role in society.” Town of Greece, 134 S. Ct. at 1819.
 Town of Greece, 134 S. Ct. at 1824.
 Lund v. Rowan County, 863 F.3d 268, 276 (4th Cir. 2017).
 Id. at 287.
 Id. at 285.
 Id. at 287.
 Bormuth v. Cnty. of Jackson, No. 15-1869, 2017 U.S. App. Lexis 17174, at *3 (6th Cir. Sep. 6, 2017).
Lund, 863 F.3d at 272.
 Id. at 273.
 Id. at 280.
 Id. at 280.
 Id.at 275
 Id. at 280
 Id. at 281. The legislative-led prayers were unconstitutional because only commissioners invoked the prayers, the invocations drew exclusively on Christianity and sometimes served to advance that faith, the commissioners invited attendees to participate, and the local government setting.
 Id. at 291.
 Bormuth, No. 15-1869, 2017 U.S. App. Lexis 17174, at *4.
 “The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.” Marsh v. Chambers, 463 U.S. 783, 786 (1983). See also, “the Framers considered legislative prayer a benign acknowledgment of religion’s role in society.” Town of Greece, 134 S. Ct. at 1819.
 Town of Greece, 134 S. Ct. at 1825.
 Bormuth, No. 15-1869, 2017 U.S. App. Lexis 17174, at *46.
Id. at *16-17.
 Town of Greece, 134 S. Ct. at 1833.
 Lund, 863 F.3d at 309.
 “From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.” Marsh, 463 U.S. at 786.
 Id. at 787-88.
 Id. at 787. (citing 1 J. of the Continental Cong. 26 (1774); 2 J. of the Continental Cong. 12 (1775); 5 J. of the Continental Cong. 530 (1776); 6 J. of the Continental Cong. 887 (1776); 27 J. of the Continental Cong. 683 (1784); 1 Anson Phelps Stokes, Church and State in the United States 448–450 (1950)).
 Town of Greece, 134 S. Ct. at 1818.
 Id. at 1823.
 Bormuth, No. 15- No. 15-1869, 2017 U.S. App. Lexis 17174, at *32.
 Town of Greece, 134 S. Ct. at 1821.
 “To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.” Id. at 1822.