By Josephine von Dohlen • Catholic News Service • Posted June 15, 2017

WASHINGTON (CNS) — Two court cases seeking to shape the place of religion in U.S. society are under review by the 6th U.S. Circuit Court of Appeals based in Cincinnati, one with the possibility of reaching the Supreme Court of the United States.

Anti-religion activists are fighting the practice of county commissioners in Jackson, Michigan, to open their public meetings with prayer. The circuit court heard oral arguments in Bormuth v. Jackson County June 14. A similar case dealing with prayer in public meetings, Lund v. Rowan County, was heard in March by the 4th Circuit, based in Richmond, Virginia.

Once those courts issue their rulings, if they conflict with one another, the Supreme Court may hear the cases to resolve the issue of prayer in the public square.

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Oral arguments in New Doe Child #1 v. The Congress of the United States are set to be heard by the 6th Circuit June 16. In the case, atheist Dr. Michael Newdow argues that the national motto, “In God We Trust,” inscribed on American currency, violates his freedom to practice atheism under the Religious Freedom Restoration Act.

Back in 2014, the Becket Fund for Religious Liberty urged the Supreme Court to allow for prayer in public meetings in the Town of Greece v. Galloway case. The law firm based its argument on the Founders’ understanding of establishing religion as well as the historical tradition of prayer in public meetings. In that case, the high court ruled the town should be permitted to open municipal meetings with a prayer.

Attorney Daniel Blomberg, counsel for the Becket Fund, said in a phone interview with Catholic News Service June 13, it is not so much the issue of whether legislators can open their sessions with legislative prayer. “What is compelling these issues is why it would be an Establishment Clause violation,” Blomberg said.

The Establishment Clause of the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

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Blomberg said anti-religion activists have tried to use the Lemon test in efforts to fight any acknowledgement of religion in the public square. It is a three-part test for interpreting the Establishment Clause before determining a law or practice is constitutional or unconstitutional. The Lemon test looks at the purpose of a governmental practice; whether it has the potential to advance or promote religion; and if it encourages state entanglement with religion.

But, the Supreme Court hasn’t used the Lemon test in over a decade, including in Establishment Clause cases in the past five years. According to Blomberg, the justices have used the historical understanding of the Establishment Clause instead.

“The Sixth Circuit seems to be leaning toward following what the Supreme Court did in the Town of Greece case,” Blomberg said. “This would say that we’re not going to do the Lemon test, we’re not going to even pay attention to it. We are going to ignore it and we’re going to focus on how we do constitutional interpretation in every other Bill of Rights case. All those cases start with understanding what the Constitution meant in the context in which it was passed.”

This is not the first time courts have considered similar cases seeking to remove the word “God” from various forms of government materials, including coins, or to take “God” out of the Pledge of Allegiance.

“They need to do what the Supreme Court said to do in the Town of Greece case and that is — start with history and do what the Supreme Court said to do: Ignore Lemon,” Blomberg said. “These cases are all going to go away if the court stops giving litigants the opportunity to raise them. This is another reason why the Supreme Court may feel the need to get involved on this issue.”

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The protection of religious liberty remains an important battle for securing of natural rights, according to Blomberg.

“Religious liberty is a fundamental right and if we don’t fight for religious liberty for our friends in Jackson County, people we don’t know and we will never meet, if we don’t fight and protect their religious liberty then what we’re really doing is eroding our own religious liberty,” he said. “Because if one set of people doesn’t have religious liberty, no one has religious liberty.”

Without the freedom of religious liberty, all freedoms are at stake, Blomberg said.

“If we have a society that doesn’t respect people’s individual and community relationships with their God,” he told CNS, “then we’re not going to have a society that is going to respect their free speech rights, or their freedom of assembly rights, or the rights to equal protection.”