Court hears fight on House prayer

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Court hears fight on House prayer

Appeal result could have ripples

By Mike Smith, The Journal Gazette, (Fort Wayne, Indiana), September 8, 2006

INDIANAPOLIS Indiana’s battle over prayer in the state House of Representatives headed to the 7th U.S. Circuit Court of Appeals on Thursday in a case House Speaker Brian Bosma and one judge say could have national ramifications.

The U.S. Department of Justice and lawyers for Bosma urged a three-judge panel in Chicago to overturn a lower court ruling prohibiting the House from opening its daily business with sectarian prayers.

The same 7th Circuit panel voted 2-1 last spring to deny Bosma’s request to temporarily lift the ban while the case was appealed. But the court said the case deserved review because it involved internal proceedings of a legislative body and raised important federalism concerns.

"The court clearly recognizes that this decision has implications far beyond the Indiana House of Representatives," Bosma, R-Indianapolis, said after the arguments.

The American Civil Liberties Union of Indiana challenged the practice on behalf of four people who believed the prayers - usually Christian - were offensive and violated the constitutional separation of church and state.

Of 53 opening prayers during the 2005 House session, 41 were given by clergy identified with Christian churches and at least 29 mentioned Jesus Christ.

The ACLU claimed the practice violated a 1983 U.S. Supreme Court decision that the civil liberties group said permitted only non-sectarian prayer before legislative sessions.

The ruling, in a Nebraska case, permitted legislative prayers if they did not "proselytize or advance any one or ... disparage any other faith or belief."

A footnote in the ruling said a chaplain for Nebraska’s legislature had removed all references to Christ in his invocations.

Ken Falk, legal director of the ACLU of Indiana who argued the case Thursday, said numerous lower courts have interpreted the ruling as meaning sectarian legislative prayers violate the church-state separation.

"This was government speech regulated by the constitution," Falk said of the Indiana prayers after Thursday’s arguments.

"Existing precedent requires that legislative prayers be non-sectarian, and these prayers were certainly not non-sectarian."

U.S. District Judge David Hamilton sided with the ACLU in November 2005, ruling that prayers mentioning mention Jesus Christ or using terms such as "savior" amount to state endorsement of a religion.

Bosma’s appeal argues that the Supreme Court case focused on whether prayers tried to convert people to a certain religion. The Justice Department claims the lower court erred by "erecting a more stringent constitutional line - one that bans any sectarian reference."

Both argue that Hamilton’s ruling would require courts to make theological distinctions between sectarian and non-sectarian prayer.

In a brief filed in the case, the Justice Department says the United States has a substantial interest in the matter.

"The United States Congress, from the first Continental Congress in 1774, has appointed chaplains to open each legislative day with an invocation, and the prayers have frequently included sectarian references, including references to particular religious deities," the brief noted.

Appeals court Judge Michael Kane, the lone dissenter last spring, said then that case law supports the proposition that the Supreme Court has approved only non-sectarian prayer but that "powerful arguments to the contrary remain."

Bosma said Kane told attorneys Thursday that the case was "a surrogate for prayer in Congress" and could apply to "every state, local or national level of government that has prayer today."

Since Hamilton’s ruling, several Indiana House members have gathered at the back of the chamber and prayed - often mentioning Christ. Falk says he has no problem with that, because it was done privately before official legislative business began.

The ruling also prompted U.S. Rep. Mike Sodrel, R-Ind., to file a bill that would bar federal judges from ruling on the content of prayer in state legislatures. It is pending in a House committee, according to Sodrel’s office.

A provision that would prohibit using federal funds to enforce Hamilton’s ruling was amended into an appropriations bill that passed the U.S. House and is now before the Senate.

It could be weeks or months before the appeals court rules. Bosma said he believes the case ultimately will be decided by the U.S. Supreme Court.

Appeals court hears arguments
The case: Indiana House Speaker Brian Bosma, R-Indianapolis, is appealing a federal judge’s ruling that bars sectarian prayers in the Indiana House.

The debate: The American Civil Liberties Union of Indiana says the prayers, usually Christian, violate the separation of church and state. Bosma and the U.S. Department of Justice say the ruling would require courts to make theological distinctions between sectarian and nonsectarian prayers.

What’s next: The 7th U.S. Circuit Court of Appeals could spend months reviewing the case. Bosma expects the case ultimately to be decided by the U.S. Supreme Court.

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