A RECENT ruling by the Sixth Circuit Court of Appeals in Ohio could set up the first major religious-liberty case Neil Gorsuch may help resolve if the Senate confirms his nomination to the Supreme Court this spring. The Sixth Circuit case concerns a dispute over legislative prayer, a topic Mr Gorsuch has never weighed in on. But in other cases touching on the Establishment Clause of the First Amendment, Donald Trump’s Supreme Court nominee has shown little inclination to buttress America’s wall of separation between church and state.

A few years into his stint as a judge on the Tenth Circuit Court of Appeals, Mr Gorsuch gave his view on a challenge to a ten commandments display on a courthouse lawn in Oklahoma. The plaintiff in Green v Haskell County said he feared that the county board of commissioners—the body that gave the go-ahead to erecting the monument at the site—would treat him “differently and more harshly” because he did not “subscribe to a particular faith that is represented by [the] monument”. After a three-judge panel sided with the plaintiff, finding the ten commandments display to violate the Establishment Clause, the Tenth Circuit judges voted not to re-hear the case en banc as a full court. But Mr Gorsuch dissented from that decision. There is, he wrote, no reason to think a suitably informed and reasonable observer would construe the monument as a government establishment of religion. The ten commandments “can convey a ‘secular moral message’”, he wrote, “about the primacy and authority of law”. They symbolise “the ‘history and moral ideals’ of our society and legal tradition”.

Recasting religious rites and imagery in secular terms is a line conservatives often take when liberals complain that America’s church-state wall has been breached. It was precisely the defence offered by the commissioners of Jackson County, Michigan when Peter Bormuth, a Pagan and Animist, objected to the prayers that launch the board’s monthly meetings. Mr Bormuth felt uncomfortable when, in the summer of 2013, he attended two board meetings to discuss environmental issues. The July meeting began with a call from the board chair to “rise” and “assume a reverent position”. The chair then offered a prayer:

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 [sic] give you all the thanks and all the praise for all that you do. Lord I wanna [sic] 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.

Mr Bormuth’s discomfort with this supplication led him to pursue another line of inquiry during the following month's meeting. After attendees debated whether county employees should be able to carry concealed handguns at work—they should, the board voted—Mr Bormuth tried to move the discussion from the Second Amendment to the First. But the commissioners would not hear of Mr Bormuth's objection to the Christian prayers they delivered month after month. According to the Sixth Circuit’s decision in Bormuth v County of Jackson, “[w]hile Mr Bormuth was speaking, one of the commissioners ‘made faces expressing his disgust’ and then turned his chair around, refusing to look at Bormuth while he spoke”. This reaction “confirm[ed] [Bormuth’s] fear” that his dissenting voice would spur retaliation from the board. That wasn’t all. After Mr Bormuth filed his lawsuit, one commissioner told a local newspaper that he was “attacking us and...my Lord and saviour Jesus Christ”. Another commission added, “all this political correctness, after a while I get sick of it”. The reaction was not confined to a war of words. Mr Bormuth was turned down in his quest to serve on a new committee handling the county’s solid waste plan despite having three years’ experience in the field. The county board apparently did not want a pagan for the job.

The district court rejected Mr Bormuth's constitutional challenge, finding him to be “hypersensitive”. But on February 15th the Sixth Circuit appeals court overturned this decision, ordering the board to suspend its Christian-only prayer tradition. While the Supreme Court held in Marsh v Chambers (1981) and Town of Greece v Galloway (2014) that legislative prayer is deeply entrenched in the nation’s history and is constitutionally kosher as a tradition that "solemnifies" public discourse, the court drew the line at prayer that “denigrate[s], proselytise[s] or betray[s] an impermissible government purpose”. By singling out and effectively silencing Mr Bormuth, calling him names (including “nitwit”) and denying him a seat on the solid-waste board, the Jackson county commissioners, the panel ruled, leapt over that line.

With the justices accepting only about 1% of the cases they are asked to hear, it is no sure bet that Bormuth v County of Jackson will make its way to the Supreme Court. Gregory Lipper, a lawyer who argued the case on Mr Bormuth’s side for Americans United for Separation of Church and State (he has since moved on to another job), explains that a full panel of the Fourth Circuit Court of Appeals is set to hear a similar case from North Carolina. If that ruling meshes with the Sixth Circuit’s stance, “there will be agreement in the lower courts that Jackson County-style practices go beyond what was considered in Town of Greece and do in fact violate the Establishment Clause”. Since the justices tend to weigh in most often when circuit courts are in disagreement, such a ruling “would make Supreme Court review less likely”. But if the Fourth Circuit reaffirms its three-judge panel decision upholding a controversial regime of legislative prayer, or if four justices decide they'd like to restore a Michigan county tradition, County of Jackson may well earn a date at the Supreme Court—and by that time, Mr Gorsuch will likely be ensconsed in Antonin Scalia’s old seat.