House prayer ban falls on appeal

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House prayer ban falls on appeal

Court finds plantiffs have no legal right to sue

By Niki Kelly, The Journal Gazette (Lafayette, Indiana), October 31, 2007

Indianapolis – The 7th Circuit U.S. Court of Appeals ruled on Tuesday that Hoosier taxpayers have no standing to challenge the content of prayer given in the Indiana House chamber, a move that effectively ends restrictions that have been in place since 2005.

The decision remands the case with orders to dismiss it for lack of jurisdiction, though it can be appealed.

The court did not rule on the merits of the case – whether prayers offered at the podium to open legislation session can be sectarian or favor one religion.

Instead, the judges found in a 2-1 decision that the taxpayers who sued lacked legal standing to bring the case.

“The plaintiffs have not tied their status as taxpayers to the House’s allegedly unconstitutional practice of regularly offering a sectarian prayer,” the ruling said. “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.”

The ruling goes on to acknowledge that a minimal amount of money is spent in the administration of the program but “the plaintiffs have not pointed to any specific appropriation of funds by the legislature to implement the program.”

The decision relied heavily on a recent U.S. Supreme Court decision.

“While we do need more time with the Indiana attorney general and the House staff counsel to examine all the ramifications of today’s decision, I am delighted that the court has left alone a tradition that has been a part of House proceedings for nearly 190 years,” Democratic House Speaker Pat Bauer said in a statement.

But the dissent in the case points out that nothing in the opinion should be construed as a ruling in favor of the House’s procedures.

“Should someone come along who meets the majority’s concept of standing, the question whether the House may sponsor prayers at state expense urging everyone in the chamber to adhere to Christianity, or edicts declaring the room a ‘hallowed place,’ or musical exhortations, revival-style, to ‘talk with Jesus,’ is an open one.”

For years, Indiana House members have invited clergy to deliver opening prayers from the speaker’s rostrum. Sometimes representatives themselves will offer the prayer if no minister or other clergy is available.

There have been no limitations or prior review of these prayers.

But in 2005, the American Civil Liberties Union of Indiana sued on behalf of several Hoosiers, alleging that many of the prayers crossed the line into proselytizing for Christianity, violating the establishment clause of the U.S. Constitution.

Transcripts were prepared for 45 out of 53 prayers offered during the 2005 session. On 41 of the days, the person giving the prayer was from a Christian denomination. In 29 of the invocations, the person explicitly offered the prayer in the name of Jesus, Christ, the Savior, or the Son.

On April 5, 2005, one minister – at then-House Speaker Brian Bosma’s invitation – stood and sang “Just a Little Talk with Jesus,” while some legislators stood, clapped, and sang along, and others walked out of the House in protest.

U.S. District Court Judge David Hamilton agreed with the ACLU and issued an injunction enjoining the speaker of the House from permitting sectarian prayers. The order also said the prayers should not use Christ’s name or title or any other denominational appeal.

Bosma appealed, and in the meantime shifted prayers to the back of the chamber in an informal huddle.

Bauer took over in 2007 and began reading prayers from the podium again, though only pre-approved scripts.

The House has spent more than $350,000 defending the suit.

“I am honestly elated that the 7th Circuit has protected the rights of individuals to speak openly and freely in every way before the crucible of free speech, the state legislature,” Bosma said. “We’ll take a win anyway.”

State Attorney General Steve Carter also hailed the ruling as a victory, saying “today’s decision confirms that federal courts exist to redress actual injuries rather than abstract philosophical disputes.”

But ACLU attorney Ken Falk was disappointed with the finding, saying he disagreed that there has to be a specific appropriation for the prayer program to have standing.

He did say a legislator or staff member would likely have legal recourse under different court precedents.

“This is not a vindication for the practices of course because the court doesn’t reach the merits,” Falk said. “We hope the House continues the practice from last year of using prayers that are non-sectarian.

“They self-corrected because they were ordered to do so. The question is whether they revert to practices of before.”

The dissent also points out that the taxpayers challenged a legislative act with concrete pocketbook injuries.

“The issue they wish to present is a serious one. They argue, in essence, that preferential access to the Speaker’s stand for adherents to the Christian faith is exactly the kind of problem that the First Amendment’s Establishment Clause was supposed to remedy.”

Falk said the ACLU has 14 days to decide whether to seek a rehearing before the full 7th Circuit Court of Appeals rather than the three-person panel that issued the opinion. Or the group can seek transfer to the U.S. Supreme Court within 90 days.

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