116 F.Supp.3d 850 (E.D.Mich. 2015), 2:13-cv-13726, Bormuth v. County of Jackson

Docket Nº:2:13-cv-13726
Citation:116 F.Supp.3d 850
Opinion Judge:HON. MARIANNE O. BATTANI, United States District Judge.
Party Name:PETER BORMUTH, Plaintiff, v. COUNTY OF JACKSON, Defendant
Attorney:No. 2:13-cv-13726 Peter Bormuth, Plaintiff, Pro se, Jackson, MI. For County of Jackson, Defendant: Richard D. McNulty, Cohl, Stoker, Lansing, MI.
Case Date:July 22, 2015
Court:United States District Courts, 6th Circuit, Eastern District of Michigan

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116 F.Supp.3d 850 (E.D.Mich. 2015)




No. 2:13-cv-13726

United States District Court, E.D. Michigan, Southern Division

July 22, 2015

Peter Bormuth, Plaintiff, Pro se, Jackson, MI.

For County of Jackson, Defendant: Richard D. McNulty, Cohl, Stoker, Lansing, MI.

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HON. MARIANNE O. BATTANI, United States District Judge.

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

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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.


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.)


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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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 non-moving 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.


A. Sectarian Prayer

As a preliminary matter, the Court briefly addresses Bormuth's objection that

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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 . . . 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, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (Brennan, J., dissenting). In light of the historical tradition of legislative prayer tracing back to the First Congress, the Supreme Court found constitutional 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, 91 S.Ct. 2105, 29 L.Ed.2d 745 (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 Fed.Appx. 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 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, 109 S.Ct. 3086, 106 L.Ed.2d 472 (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,

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Id. 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, 188 L.Ed.2d 835 (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 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...

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