Bormuth v. Cnty. of Jackson

• Decision Date: 06 September 2017
• Docket Number: No. 15-1869.,15-1869.
• Citation: 870 F.3d 494
• Parties: Peter Carl BORMUTH, Plaintiff–Appellant, v. COUNTY OF JACKSON, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

870 F.3d 494

Peter Carl BORMUTH, Plaintiff–Appellant,

v.COUNTY OF JACKSON, Defendant–Appellee.

No. 15-1869.

United States Court of Appeals, Sixth Circuit.

Argued: June 14, 2017

Decided and Filed: September 6, 2017

COUNSEL ARGUED EN BANC: Peter Bormuth, Jackson, Michigan, pro se. Allyson N. Ho, Morgan, Lewis & Bockius LLP, Dallas, Texas, for Appellee. Richard B. Katskee, Americans United For Separation of Church and State, Washington, D.C., Aaron D. Lindstrom, Office of the Michigan Attorney General, Lansing, Michigan, for Amici Curiae. ON BRIEF: Peter Bormuth, Jackson, Michigan, pro se. Allyson N. Ho, John C. Sullivan, Morgan, Lewis & Bockius LLP, Dallas, Texas, Judd E. Stone, Michael E. Kenneally, Morgan, Lewis & Bockius LLP, Washington, D.C., Hiram S. Sasser, III, Kenneth A. Klukowski, First Liberty Institute, Plano, Texas, Richard D. McNulty, Cohl, Stoker & Toskey, Lansing, Michigan, for Appellee. Richard B. Katskee, Americans United For Separation of Church And State, Washington, D.C., Daniel Mach, Heather L. Weaver, American Civil Liberties Union Foundation, Washington, D.C., Daniel S. Korobkin, Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Detroit, Michigan, Aaron D. Lindstrom, Office of the Michigan Attorney GeneraL, Lansing, Michigan, Michael B. Kimberly, Mayer Brown LLP, Washington, D.C., Ed R. Haden, Jason B. Tompkins, Michael P. Taunton, Balch & Bingham LLP, Birmingham, Alabama, Eric C. Rassbach, Daniel H. Blomberg, The Becket Fund For Religious Liberty, Washington, D.C., Benjamin L. Ellison, Dorsey & Whitney LLP, Wayzata, Minnesota, Bryan H. Beauman, Sturgill, Turner, Barker & Moloney, PLLC, Lexington, Kentucky, Eric D. McArthur, Benjamin Beaton, Sidley Austin LLP, Washington, D.C., Edward L. White III, American Center for Law & Justice, Ann Arbor, Michigan, Douglas R. Cox, Gibson, Dunn & Crutcher LLP, Washington, D.C., for Amici Curiae.

Before: COLE, Chief Judge; BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, and THAPAR, Circuit Judges.^*

GRIFFIN, J., delivered the opinion of the court in which BATCHELDER, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, KETHLEDGE, and THAPAR, joined. ROGERS, J. (pp. 519–21), delivered a separate concurring opinion in which COOK and McKEAGUE, JJ., joined. SUTTON, J. (pp. 521–25), delivered a separate concurring opinion in which BATCHELDER, McKEAGUE, KETHLEDGE, and THAPAR, JJ., joined. MOORE, J. (pp. 525–45), delivered a separate dissenting opinion in which COLE, C.J., and CLAY, STRANCH, and DONALD, JJ., joined, and WHITE, J., joined in part. WHITE, J. (pp. 545–46), delivered a separate dissenting opinion.

OPINION

GRIFFIN, Circuit Judge.

Since the founding of our Republic, Congress, state legislatures, and many municipal bodies have commenced legislative sessions with a prayer. Consonant with this historical practice, defendant Jackson County Board of Commissioners opens its public meetings with a prayer that is generally solemn, respectful, and reflective. Plaintiff Peter Bormuth claims that this custom violates the Establishment Clause of the United States Constitution¹ because the Commissioners themselves offer the invocations. We disagree and affirm the judgment of the district court.

In doing so, we hold that Jackson County's invocation practice is consistent with the Supreme Court's legislative prayer decisions, Marsh v. Chambers , 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), and Town of Greece v. Galloway , ––– U.S. ––––, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014), and does not violate the Establishment Clause.

I.

A.

The Jackson County Board of Commissioners is an elected board of nine individuals that represents the citizens of Jackson County, Michigan. The Board opens its monthly meetings with Commissioner-led prayers. Following a call to order, the Board's Chairman typically requests Commissioners and the public alike to please "rise and assume a reverent position." Other variations include: "Everyone please stand. Please bow your heads"; "Please bow your heads and let us pray"; and "If everyone could stand and please take a reverent stance." One of the Commissioners then offers a prayer, which is followed by the Pledge of Allegiance, and then county business.

The Board's invocation practice is facially neutral regarding religion. On a rotating basis, each elected Jackson County Commissioner, regardless of his religion (or lack thereof), is afforded an opportunity to open a session with a short invocation based on the dictates of his own conscience. Neither other Commissioners, nor the Board as a whole, review or approve the content of the invocations. There is no evidence that the Board adopted this practice with any discriminatory intent.

Prayers offered by the Commissioners are generally Christian in tone and often ask "God," "Lord," or "Heavenly Father" to provide the Commissioners with guidance as they go about their business. Some prayers ask for blessings for others, from county residents suffering particular hardships, to military members, first responders serving in Jackson County, and others. The following is illustrative of the prayers at issue:

Bow your heads with me please. Heavenly father we thank you for this day and for this time that we have come together. Lord we ask that you would be with us while we conduct the business of Jackson County. Lord help us to make good decisions that will be best for generations to come. We ask that you would bless our troops that protect us near and far, be with them and their families. Now Lord we wanna give you all the thanks and all the praise for all that you do. Lord I wanna remember bereaved families tonight too, that you would be with them and take them through difficult times. We ask these things in your son Jesus's name. Amen.

Plaintiff, a "self-professed Pagan and Animist," objects to this practice. In his words, the "prayers are unwelcome and severely offensive to [him] as a believer in the Pagan religion, which was destroyed by followers of Jesus Christ." The distinctly Christian prayers offered by the Commissioners make him feel "like he [i]s in Church" and that "he [i]s being forced to worship Jesus Christ in order to participate in the business of County Government." He admits, however, that he does not stand and participate in the invocation portion of the meetings. Nor does he contend that the Commissioners dissuaded or attempted to dissuade him, or any other member of the public, from leaving the meeting during the prayer, arriving late, or protesting the practice after the fact.

And protest after the fact he did. Bormuth first raised his concerns about the invocations during a public comment portion of an August 20, 2013, meeting. While Bormuth was speaking "on the issue of their sectarian prayers," one of the Commissioners "swiveled his chair and turned his back to [Bormuth]." This "insulted and offended" him.

Bormuth commenced this litigation on August 30, 2013. A month later, he sought appointment to Jackson County's Solid Waste Planning Committee. According to Bormuth's Amended Complaint, the Board appointed two other lesser-qualified individuals instead.

Bormuth moved for summary judgment in December 2013. Following the Supreme Court's May 2014 decision in Town of Greece and while plaintiff's motion was pending, Jackson County moved for summary judgment. Thereafter, the magistrate judge directed Bormuth to file a revised motion addressing Town of Greece . He did so in September 2014.

Ultimately, the magistrate judge issued a report and recommendation granting Bormuth's motion for summary judgment, denying Jackson County's motion for summary judgment, and enjoining Jackson County's invocation practice as violative of the Establishment Clause. However, the district court rejected this portion of the magistrate's report and recommendation and found Jackson County's prayer practice to be consistent with the Supreme Court's holdings in Marsh and Town of Greece . Bormuth appealed, claiming that the district court erred in concluding Jackson County's prayer practice does not violate the Establishment Clause and abused its discretion regarding two discovery matters. On appeal, a panel of our court ruled in Bormuth's favor on his Establishment Clause challenge. Bormuth v. Cty. of Jackson , 849 F.3d 266 (6th Cir. 2017). Thereafter, we sua sponte granted rehearing en banc. 855 F.3d 694 (6th Cir. 2017) (mem.).

B.

Before turning to the merits of the appeal, we pause to address why our factual recitation excludes certain statements made by Commissioners after Bormuth commenced this litigation (and in particular, during a November 12, 2013, meeting of a subset of the Board to review a proposed revised invocation practice in response to Bormuth's lawsuit—a proposal which was ultimately tabled). Both Bormuth and Amicus Americans United for Separation of Church and State argue that because Jackson County records by video its Board of Commissioners' meetings and makes these videos available online on its website, the videos are either in the record or are judicially noticeable for purposes of this appeal. We disagree, and refuse to fault the district court for failing to address facts that were not before it.

"Our review of a district court's summary-judgment ruling is confined to the record." E.E.O.C. v. Ford Motor Co. , 782 F.3d 753, 765 (6th Cir. 2015) (en banc). Under Federal Rule of Civil Procedure 56(c), the opposing party "has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact."

Chicago Title Ins. Corp. v. Magnuson , 487 F.3d 985, 995 (6th Cir. 2007) (quoting In re Morris , 260 F.3d 654, 665 (6th Cir. 2001) ). "This burden to respond is really an opportunity to assist the court in understanding the facts. But if the non-moving party fails to discharge that burden—for example, by remaining silent—its opportunity is...