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defending the First Amendment against the Christian right ...

Jews On First!

... because if Jews don't speak out, they'll think we don't mind

Indiana House Speaker Bosma files appeal brief

Document sidesteps concept of pluralism

by, May 18, 2006

Please see earlier coverage of this issue in our section on Indiana.

Links to reports and documents cited in our report immediately follow it.

Republican Speaker of the Indiana House Brian Bosma filed a brief in his appeal of a federal district judge's ruling barring prayers to Jesus during the chamber's official business. The American Civil Liberties Union, which sued to stop the sectarian prayers, must now respond to Bosma's brief.

The predominant theme in Bosma's 68-page appeal is that the courts, as a separate branch of government, cannot, as ordered by a federal district judge last winter, make theological judgments about what is or is not sectarian prayer in the legislature.

Ken Falk, legal director of the ACLU of Indiana, told JewsOnFirst, "I don't agree that the [district] court decision reads that way." The court only ordered that the speaker inform guest clergy that their invocations must be nonsectarian, Falk said.

Bosma also argues that the people who brought the lawsuit do not have standing to sue because the money involved is negligible, limited to mailing invitations to the guest preachers.

According to an Indianapolis Star report, Bosma has hired an outside law firm and is also represented by the state attorney general. He said he might raise private funds for legal expenses -- or he might use public funds.

Bosma's arguments may seem frivolous and truculent. But given the increasingly right-wing composition of the courts, we think it would be a mistake to anticipate Bosma's loss.

In February, Bosma was forced to apologize to the Jewish community after a discussion on his prayer policy with Jewish leaders in which he disparaged the small size of the community and noted that Christians were over 80% of the state's population. (Please see our report) His arguments in the appeal indicate that he really didn't understand what it was that upset Indiana Jews -- or that his apology was not sincere.

A quote attributed to Speaker Bosma in his news release also evidences a "tin ear" toward minority concerns about the establishment clause of the First Amendment. The quote expresses as well the hostile menace toward the federal courts that has come to typify the religious right.

For the first time in American history, a federal court has specifically prohibited state legislators and their invited guests from using the name of Jesus Christ in prayer. An overwhelming majority of House members and the public believe that this decision is overreaching and that this ruling into the internal practices of a co-equal branch of government by this court should not be allowed.

Bosma has posted the news release about his appeal and the brief on the state legislature's website. Not a big expenditure of public funds, but a telling one.

Bosma appeals prayer ruling
He wants ban on religious content to be overturned

By Bill Ruthhart, The Indianapolis Star, May 13, 2006

Indiana House Speaker Brian C. Bosma has filed his appeal of a federal court ruling barring sectarian prayers during Indiana House proceedings. Bosma's brief, filed with the 7th U.S. Circuit Court of Appeals in Chicago, argues that the courts cannot judge which prayers are and are not permissible. Bosma is using a private law firm as well as the state Attorney General for the appeal. He said it might be paid for with taxpayer dollars. Continue

Speaker Bosma Files Appeal with Seventh Circuit Court on Prayer Lawsuit

News Release, Indiana House Republican Caucus, May 12, 2006

(Statehouse) Friday, May 12, 2006 – Indiana Speaker of the House Brian C. Bosma has filed an appeal to the U.S. Court of Appeals for the 7 th Circuit in Chicago on a ruling that censors the name of Jesus Christ from prayers opening each legislative session day of the Indiana House of Representatives. Speaker Bosma has promised to vigorously defend the 188 year tradition of inclusive, open legislative prayer in the Indiana House. Continue

Brief For The Defendant-Appellant Brian Bosma

May 10, 2006, a PDF document stored on the Indiana legislature's website

The brief states: "For the first time in American history, a court has prohibited state legislators and their invited guests from praying in the name of Jesus Christ, on pain of being found in contempt of court." It says that, if Speaker Bosma continues the prayers during official business, the injunction issued by a federal judge late last year directed him to

advise all persons offering such prayers (a) that the prayers must be nonsectarian and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief, and (b) that the prayers should not use Christ’s name or title or any other denominational appeal. App. 1A-2A.

Thus, for the first time in nearly two centuries, content-specific restrictions were placed on prayers delivered in the House, and clergy and representatives were no longer free to pray solely in accordance with conscience. Ministers of several backgrounds have stated that, under the terms of the injunction, they cannot pray as their conscience requires. See App. 179A-199A (affidavits of Lutheran, Orthodox, and non-denominational ministers), 340A. Moreover, the injunction carries the full force of law: any minister or representative held to act in contempt of the order would be subject to fines and imprisonment.

Any attempt to distinguish between “sectarian” and “nonsectarian” prayer requires the court (and those executing its orders) to make controversial theological judgments about what sorts of prayers pass muster. But numerous Supreme Court decisions forbid courts (and other public officials) to make such determinations, which “entangle” the state in theology and establish a government-approved religious orthodoxy. Moreover, the judicial oversight necessary to administer the court’s injunction is unworkable, creates serious free speech problems, and constitutes a grave affront to the internal workings of a co-sovereign legislature—undermining principles of federalism and comity.
The district court’s injunction is even more extraordinary given that these plaintiffs lack standing to sue. None of them has direct contact with the prayers at issue, and they do not challenge the practice of prayer per se or the manner in which people are chosen to pray. Their sole alleged “injury” is paying taxes to support the legislature—a generalized injury, and one that will not be redressed by a decision in their favor. Indeed, it is undisputed that the there is no cost to the practice of prayer given by legislators, and that the (de minimis) cost of prayer by visiting clergy will not decrease if plaintiffs prevail.

To read Speaker Bosma's brief , a PDF document, please click here