Appeals court orders prayer suit dismissed

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Appeals court orders prayer suit dismissed

By Deanna Martin, Associated Press, Journal-Courier (Lafayette, Indiana), October 30, 2007

Indianapolis - A federal appeals court has ordered the dismissal of a lawsuit challenging sectarian prayers being given during sessions of the state House of Representatives.

The 7th U.S. Circuit Court of Appeals said in a ruling today that a group of taxpayers who sued did not have legal standing to do so.

The 2-1 ruling overturned a federal judge's decision that banned the practice of opening the chamber's business with sectarian prayers. U.S. District Judge David Hamilton ruled in November 2005 that prayers mentioning Jesus Christ or using terms such as savior amounted to state endorsement of a religion.

But the appeals court said the taxpayers lacked standing to sue because they could not sufficiently link taxpayer money with the practice. The court said that there were minimal costs for the "Minister of the Day" program, such as money for webcasting and postage for thank you letters and pictures.

But it said the costs were not only unrelated to the content of the prayers offered, the appropriations did not authorize, direct or mention the expenditures.

"They have not shown that the Legislature has extracted from them tax dollars for the establishment and implementation of a program that violates the establishment clause," Judge Kenneth Ripple wrote in the majority opinion. It ordered that the lawsuit be returned to Hamilton's court and be dismissed.

Judge Diane Wood dissented, saying the majority had overextended "the command of Freedom From Religion" in denying the plaintiffs a day in court. She said that preferential access to the House speaker's stand for adherents to the Christian faith was exactly the kind of problem the First Amendment's establishment clause was supposed to remedy.

If the plaintiffs had simply complained about hearing the prayers as they walked past the door of the House chamber on their usual way to work, "they may very well have been entitled to proceed," she said.

Wood said the majority opinion should in no way be taken as a ruling on the merits of the House practice.

Prayer in the Indiana House was a tradition for 189 years until the American Civil Liberties Union of Indiana challenged the practice in 2005 on behalf of the four taxpayers. They 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.

There was no immediate action on today's ruling from House Minority Leader Brian Bosma, R-Indianapolis, who was the chamber's speaker and was named as the defendant when the lawsuit was filed.

Current House Speaker Patrick Bauer, D-South Bend, said he needed time to meet with the Indiana attorney general's office and House staff to discuss ramifications of the ruling. But he said he was glad the appeals court had left the tradition alone, and when lawmakers meet for an organization day on Nov. 20, the House would begin with a prayer.

Ken Falk, legal director for the ACLU of Indiana, said he had not talked to his clients about what to do next, but said an appeal was certainly worth considering. One option would be to ask the entire 7th Circuit to hear the case, or appeal to the U.S. Supreme Court.

Another option would be to find a different plaintiff, such as a legislator or lobbyist, whose standing could be different from that of a taxpayer. Much would depend on what Bauer does, he said.

Under Bauer's leadership last session, the House began each day's business with a nonsectarian prayer. The Senate did the same.

"That's what we were arguing for all along," Falk said. "The constitution allows that."

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