INDIANAPOLIS — A legal challenge to sectarian prayers being given during sessions of the state House of Representatives may continue, even though a federal appeals court has ordered that the lawsuit be dismissed.
The 7th U.S. Circuit Court of Appeals ruled 2-1 yesterday in Hinrichs v. Bosma that a group of taxpayers who sued over the practice did not have legal standing to do so. The ruling was hailed by House leaders, Attorney General Steve Carter and some others.
But the legal director of the American Civil Liberties Union of Indiana, which is representing the plaintiffs, said there were still options to keep the challenge alive or begin a new one. Ken Falk said he could ask the full 7th Circuit to hear the case, appeal the ruling to the U.S. Supreme Court or find a new group of plaintiffs that could have standing to sue.
Yesterday’s 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 not only were the costs unrelated to the content of the prayers, 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 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.
House Minority Leader Brian Bosma, an Indianapolis Republican who was speaker when the suit was filed and was named as the defendant, said he was “elated that the 7th Circuit has protected the rights of individuals to speak openly and freely in every way before really the crucible of free speech, the state Legislature.”
When asked about the decision being based on standing and not the merits of the case, he said, “We’ll take a win anyway.”
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.
Falk said the ACLU’s next step could depend on what the speaker does.
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.”