Hinrichs, Anthony v. Speaker House Rep IN

RIPPLE, Before WOOD, KANNE and Circuit Judges.

RIPPLE, Judge. Circuit This matter is before the court on the motion of appellant for a pending his appeal to this court. underlying action was brought by four Indiana tax- payers against of the Indiana House of Representatives. In their com- plaint, they contended that the House’s opening proceedings overtly prayer, Christian, sectarian usually Hin backgrounds.” faith different from Clause Establishment violates Bosma, F.Supp.2d trial, richs After a bench Amendment. First (S.D.Ind.2005). otherwise receive Clerics declaratory judg- court issued district pray form their instructions about no is unconstitu- Indiana’s ment that does not take. The should enjoined the ers permanently tional clerics, guest selection of participate the further sectarian permitting from the first them for usually he meets meet- and of House beginning at the introducing them immediately before time Honorable Speaker, the The House ings. meeting. a House opening of of the at the Bosma, stay a sought then Brian during appeal an judgment court’s district of Indiana’s session During the 2005 the court denied district court. The to this were de- Assembly, 53 invocations General motion. cler- by 41 Christian the House: livered by each a ics, and by representatives one appeal having filed Speaker, The the 45 an imam. Of layman, a rabbi and judgment, now seeks underlying the from transcripts are avail- invocations The in this court. stay judgment the a (The able, identifiably Christian. 29 were motion for to responded the plaintiffs transcribed, the but prayer was rabbi’s reply a has filed stay, and a Ex- prayer.) was a nonsectarian imam’s matter is therefore The memorandum. response to plaintiffs’ one to the hibit set the reasons For ready for resolution. pray- catalogues stay helpfully motion stay. deny the opinion, we forth in this ers; of the Christian majority internal involves the Because matter to Christ: by supplications identifiable are body and of a state proceedings name,” “in Christ’s They given con- federalism important therefore raises Christ,” “In the Son Jesus “through [Y]our from our usual cerns, departed we have Savior,” etc. Jesus our Strong name of matters deciding preliminary practice of Stay, Opposition Appellees’ Mem. and have by a short order such as one further, including go at 1-5. Ex.l Several in more forth our views to set elected day when forward one that, “look[s] by pro- hope fashion. We plenary earth will people and nations all all manner, na- the tentative ceeding in this respond hear and opportunity have the very early point analysis at this of our ture Almighty God messages of love to all. plain will be litigation in the saving in the Himself has revealed who 12. The Id. at of Jesus Christ.” power I a fol- example most dramatic by BACKGROUND led by rousing sing-along, a lowed tune, a Little Talk cleric, of the “Just day’s disputed. are not facts this case legislators 14. Some Jesus.” Id. with Indiana House years, For 188 and stood public members of a meetings brief opened its official leg- they sang; in time as several clapped invocation, usually delivered prayer or chamber, however, islators, left the House community who is from an Indiana a cleric inappropriate. song was believing that the Each representative. a state sponsored Hinrichs, at 1107. F.Supp.2d See by mail confirmation guest cleric receives court, analyzing the rec- district notably, appointment; temporary of his thorough wrote parties, made states, you ord ask “[w]e letter the form comprehensive After 60-page opinion. as our an ecumenical strive for facts, court the district members, staff, come overview and constituents 4) plaintiffs denied; determined that the had standing it is irreparable harm the bring this action. The court held that party will suffer without greater relief is plaintiffs had succeeded in demonstrat- than the harm opposing party will ing tax respect the use of dollars with 5) if stay suffer granted; the sectarian invocations: Several hundred stay will be interest. See dollars the invocations through Kenosha, Kiel v. City 815- mailings guest through (7th Cir.2000). clerics and party A seeking (online web-streaming presentation) of pending appeal has a similar burden: It each meeting, including por- the invocation must show that it significant has a proba- tion. The district court accept declined to bility merits; of success on the that it will Speaker’s argument in order to irreparable face harm stay; absent a taxpayer standing, plaintiffs must stay injure that a will not the opposing show that the elimination of the challenged party and will be in interest. practice will result in a reduction in their Braunskill, See 770, Hilton v. 481 U.S. merits, payments. tax On the the district 776, 2113, (1987). 107 S.Ct. 95 L.Ed.2d 724 Chambers, court held that Marsh v. 463 A. Likelihood of Success 783, 3330,

U.S. 103 S.Ct. 77 L.Ed.2d 1019 on the Merits (1983), provided controlling precedent, ecumenical, and that Marsh allows nonde- Standing 1. legislative prayer, nominational but forbids first contends that such it overtly when is and consis- he prevail will on the merits of appeal tently sectarian. The court also declined plaintiffs because the are without standing to accept contention that sue. Both parties accept in order courts prayers decide which are to have standing as a taxpayer, person Christian in nature and which are ecumen- must demonstrate that the challenged pro In view, ical. the district court’s gram supported by monies raised rejected proposition. manner, In like through taxes and that the use of those the district court accept did not argu- monies specific exceeds a constitutional prohibiting ment sectarian limitation on public funds, the use of such would violate the Free Exercise or Free as the First Amendment’s prohibition on Speech rights guest of clerics. laws respecting an establishment of reli gion. Valley See Forge Christian Coll. v. 11 Americans Separation United for DISCUSSION State, Inc., Church & 464, 454 481-82, U.S. In reviewing a motion for a stay 752, 102 S.Ct. 70 (1982); L.Ed.2d 700 Flast pending appeal, Cohen, we review the 83, district 102-03, 392 U.S. 88 S.Ct. findings error, court’s 1942, fact for clear (1968); 20 L.Ed.2d 947 Metzl v. balancing of the factors under the Leininger, 618, abuse of Cir.1995). discretion standard and its legal conclu This is true even if the ques amounts in sions de In assessing novo. whether a tion piddling. See United States v. stay warranted, the district SCRAP, court 669, U.S. 689 n. 93 S.Ct. required to determine whether party (1973); L.Ed.2d 254 Lynch v. seeking 1) has demonstrated that: Donnelly, 668, 671, 104 S.Ct. it has a reasonable likelihood (1984) success on 79 L.Ed.2d 604 (involving ex 2) merits; adequate no remedy at penditure law per year creche); to erect $20 3) exists; it will irreparable suffer harm if American Civil Liberties Union v. City of Imagine complaining a suit Charles, St. Cir.1986) violating the Lynch [Establish- assumed President was (noting that nativity challenge by including scene favorable ment] [C]lause standing arrange). On the submis- religion in his State of the only references cost $20 stage of early parties objection at to his sions Union address. that this standard appears it litigation, any expenditure not be to action would that tax The record shows been met. religious purpose; for a of funds mailings the cost supported dollars could doubtless though accountant each, and clerics, at guest $1.60 $0.54 government cost to the estimate the web-streaming the invocation the cost of security arrangements, preparations, sessions, per the 2005 portions $1.88 etc., in a of the Union involved State calcula- the district court’s By minute. address, greater be no that cost would tions, in tax dollars of total cost had men- merely because the President in 2005 was invocational House’s rather than John Stuart tioned Moses Hinrichs, at 1111 F.Supp.2d $448.38. words, marginal Mill. other n. 6. taxpaying public incremental cost to the submits the Establish- alleged reply, violation standing taxpayer are without plaintiffs zero. ment Clause challenged of the elimination the Id. plaintiffs’ to the not inure would program context, passage appears in Read words, because the In other benefit. fiscal taxpayers that repeat to the rule simply web-streamings would mailings and cost to challenged practice trace a cannot who if invocations were the the same even be If standing. any expenditure are without permissi- therefore nondenominational argument accept Speaker’s to the were we “mar- ble, have no prayers the sectarian litigation, stage of the presented at this at- taxpayers. Mr. Bosma cost” to ginal practice could any time an unconstitutional theory with dictum support tempts a constitutional at no cost replaced with be in Free- decision this court’s recent from standing one, asserting taxpayer those Chao, v. Religion Foundation dom from challenge it. The powerless be Cir.2005). Although persuasively yet respond this matter once certainly shall review we accep- that court’s criticism district review, not we do believe plenary on again tax- mean that such a rule would tance this dictum on reliance standing challenge are without payers burden of demon- him to meet his permits cross on large stone erection mer- on the strating probability success be re- theoretically could land if it Religion Founda- In Freedom its. from a secular monument placed standing tion, taxpayers had held that theory misapprehends Such price. same funds use of challenge the President’s standing: The taxpayer purpose though the even faith-based initiatives plaintiffs tax injury whether the is true out doled question were funds man- illegal in an being spent dollars than earmarked branch rather executive not redressed injury is Such ner. The court specific grants. by Congress back, see D.C. Com- money tax giving aside, though noted, that even as an then Columbia, 858 Cause District mon activity appropri- uses branch executive all (“The (D.C.Cir.1988) Supreme funds, without be citizens would ated munici- required state has never “that do Court challenge practices standing to their to demonstrate taxpayers pal expenditures”: involve Noting reduced as a result of a dition. the contemporaneous writ- taxes will Freedom judgment.”); ing favorable of the First Amendment and the estab- cf. from (not Foundation, F.3d at 990 Religion lishment of Congress, harm tangible of most uncon ing that the Court stated that the Fram- zero, practices spending be stitutional ers would not have a practice established returning the taxes that cause instead their understanding violated government practices, constitutional they just amendment elsewhere), money but end spends composed. opinion had holds that the spending practice. unconstitutional ing the “simply point, “marginal to the cost” More acknowledgment widely tolerable of beliefs Religion Freedom statement from among held people country.” of this purest in its Foundation is dictum form: 792,103 Id. at S.Ct. 3330. of a hypothetical It occurs a discussion After approving general point peripheral that illustrates a terms, proceeded Court to discuss case at hand. Id. It therefore is not bind whether particular features of Nebraska’s ing authority. Cent. Green Co. v. United constitutionally invocations were proble States, 425, 431, S.Ct. matic. It noted in a footnote that (2001).1 148 L.Ed.2d 919 prayers were “nonsectarian” and “Judeo n must We therefore conclude that Christian,” “[although some of Speaker is to show a unable substantial chaplain’s] [the earlier were often likelihood of success on the merits of his explicitly Christian, [he] removed all refer standing argument. ences to Christ after a complaint from a legislator.” Jewish Id. at 793 n. 2. Establishment Clause S.Ct. 3330. the text of the opinion, The Supreme Court has addressed the Court concluded: “The content of the constitutionality legislative prayer the judges where, is not of concern to Chambers, only once. See Marsh v. 463 here, as there is no indication that the 783, 791-95, 3330, U.S. 103 S.Ct. 77 prayer opportunity exploited has been to (1983). case, L.Ed.2d 1019 In that a state proselytize one, or advance or to dis legislator taxpayer challenged the Ne other, parage any faith or belief.” Id. at legislature’s practice braska offering 794-95, 103 S.Ct. 3330. prayer, brief conducted a staff chaplain In salary paid funds, us, whose from tax case now before plaintiffs contend, held, before the start of official business each and the district court day. Supreme upheld prac The Court pervasive consistent and use of Chris- analyzed tice. The Court largely issue tian invocations Indiana is the sort of based on considerations of history and tra- that Marsh found unacceptable. 1412, 1. The other cases cited County, Cir.1993) (no do not 4 F.3d 1416 arguably "marginal even taxpayer standing create cost” re challenge to crucifix in Rather, quirement. they simply donated); public park demonstrate because it was Fried Dist., that individuals who cannot trace the chal Cmty. mann v. Sheldon Sch. 995 F.2d lenged practice (8th Cir.1993) (no enjoy to tax dollars cannot 802 taxpayer standing to taxpayer standing. See challenge Doremus v. Bd. high gradua benediction at school Educ., 429, 434-35, 394, 72 S.Ct. 96 showing tion because no sup that tax funds Found, (1952) (no it); taxpayer standing L.Ed. 475 ported Religion to Freedom from challenge readings Zielke, 1463, classroom Cir.1988) (no of the Bible be 1470 showing cause no that tax dollars municipal taxpayer fund the standing challenge do practice); monument). v. North Lake nated Ten Gonzales Commandments Township of

399 sweeping proposi- not stand for.the does has been opportunity [that] “prayer It is Kennedy apparently would ... faith tion Justice ... one ... advance exploited it, namely, accepted that all ascribe Id. or belief.” years equiva- old and their practices Speaker’s thrust of principal today. lents are constitutional here turns on claim Clause Establishment (internal 603,109 Id. at S.Ct. 3086 citations Marsh should passage whether omitted); at' n. see also id. constitutionally acceptable limiting read as (noting pref- that a Governor’s S.Ct. 3086 In the prayer. to nonsectarian Christianity and discrimination erence for dictum, view, language Thanks- against all non-Christians his line be- not establish a does Marsh “very proclamation is the evil” giving legislative nonsectarian permissible tween which the Establishment Clause is against legisla- sectarian impermissible prayer and Furthermore, meant, part, protect). reading appear This prayer. tive O’Connor, separate opinion, in her Justice Supreme Court’s efforts minimize longstanding emphasized that both ex- question. critical on this guidance give and its “non- istence rejected Moreover, position has been his in Marsh led her to nature” con- sectarian Court, many as as well Supreme did not clude that the violate the courts. courts and state lower federal Amendment. Id. at First squarely have confronted cases Few (O’Connor, J., concurring). S.Ct. 3086 constitutionality legislative sectarian but, cases con- notably, those have prayer, only Supreme other Court case that prohibits practice. cluded Marsh is Van meaningfully elucidates Orden — -, Perry, U.S. 125 S.Ct. v . Court importantly, Most (2005). L.Ed.2d precluding sectar read Marsh itself has case, a monument of the which approved Allegheny v. County prayer. ian capítol, at the Texas Ten Commandments Union, 492 U.S. Liberties Civil American recognized cases that discussed Court 106 L.Ed.2d 109 S.Ct. It heritage. in American God role (1989), held unconstitu Supreme Court Marsh, suggested in a footnote cited county in a display of a creche tional the challenge to Nebraska’s Kennedy’s dissent Justice courthouse. rejected been maintained of the Court four members “In nonsectarian: prayers the were prayer permissible was legislative if Marsh, explicitly were often prayers the Marsh, was surely the creche under then all Christian, removed chaplain the but 4,n. Id. at 665 & also constitutional. year after the suit references Christ J., dissenting). Jus (Kennedy, S.Ct. 3086 at 2862 n. 8. filed.” was Id. replied: majority opinion tice Blackmun’s addressed the constitu itself, never have Indeed, recog We the Court Marsh prayer, but history” tionality legislative of unique that not even “the nized on the nonsectarian hinging justify read Marsh as can contem prayer legislative of at issue there. invocations nature of the prayers that have legislative porary Crestwood, F.2d v. Doe Vill. government with See affiliating of effect of (7th Cir.1990) (striking down 1476, 1479 faith or belief. specific one that includ Italy” of festival town’s “Touch did prayers involved Marsh stating mass and that a Roman Catholic ed principle violate “non-denominational” Marsh approved had all ref chaplain “removed particular Thompson, v. Thus, Zandt plainly prayer); Van erences to Christ.” (7th Cir.1988) Cir.2005), (noting Wynne’s 1218-19 reaffirms reading chaplain removed that in Marsh refer- Allegheny Marsh and County and holds ences to and there was no evidence Christ that a local prayers board’s nonsectarian exploited prosely- prayers were permissible were under those cases. religion); City one tize or advance St. The Ninth Circuit faced similar issue Charles, (striking 794 F.2d at 271 down in Bacus v. Palo Verde School Unified city’s large lighted of a cross and display Education, District Board Fed.Appx. proposition that citing Marsh “conven- (9th Cir.2002) order).2 (unpublished tional nonsectarian invocations of There, the court struck down a school deity” permissible). practice board’s of sectarian invocations at circuits, however, Other have confronted meetings, official “in ended question of sectarian Name of Jesus.” Id. at 356-57. The court directly, and their decisions are consistent deliberated over whether school board with the district court’s conclusion. Most prayer analyzed should be under Marsh or recently, upon the Fourth Circuit relied eases; prayer under school ultimately it involving legis Marsh to resolve two cases issue, did not have to holding decide this prayer. Wynne lative v. Town Great Falls, that Cir.2004), even violate the more lenient court struck down a town’s Marsh doctrine. Id. at 356. opening city meetings prayers court, council with According to that overtly Chris- closely majority resembled prayers tian were an inappropriate effort prayers in offerings this case: brief Christianity, to “advance” in Marsh’s like, ended “In supplications with Christ’s terms, government’s and showed the “alle- name we at pray.” Id. 294. The court faith, giance” to that in Allegheny Coun- placed great reliance on Marsh’s limita ty ’s. Id. 357.3 tion to nonsectarian and its warn invites our attention to two ing particular that advances a circuit cases to his more limited religion impermissible; it also discussed reading of legisla- Marsh to mean that all length at some subsequent the Court’s in constitutionally tive permissible. terpretation in Allegheny of Marsh Coun Buchanan, Murray 720 F.2d 689 ty. See id. at 297-301. The court con (D.C.Cir.1983) (en banc) curiam), (per cluded that the Christian at issue court dismissed an appeal challenging violated the rule these two Con- cases gress’ “affiliatfing]” policy of government opening meetings with a religion. prayer by Christian paid chaplain; Id. at 300. A appeal second ease, Simpson v. County pending at the time Marsh was decided. Chesterfield Supervisors, Board 404 F.3d 276 per opinion This curiam simply unpublished tion to orders courts within Weisman, rejected in Lee v. Circuit). the Ninth (1992) S.Ct. 120 L.Ed.2d 467 —the strictly prohibited court held that Marsh 3. A similar case Sixth Circuit also de- commencements, sectarian at the or serves mention. In Stein v. Plainwell Com- Stein, solemnizing other occasions. Schools, munity Cir.1987), 822 F.2d 1406 1408-09; (Mil 822 F.2d at see id. at 1410 the Sixth Circuit overtly struck down the burn, J., concurring). While the decision’s Christian invocations and benedictions used law, holding longer broad good is thus no Michigan high graduation at two school cere- Relying Stein interpretation monies. on remains valuable for Marsh to find that settings may permis- in such in some cases be Marsh. Thus, Snyder offers little a also id. at n. 10. prayer by legislative approved position. chal- for the the identical and so chaplain, paid did not Congress’ practice lenge regarding courts have ad- Finally, several state ques- constitutional “a substantial raise prayer and legislative the issue of dressed Although the at 690. tion.” Id. court’s de- consistent with the district uses sectari- Congress itself that contends Burbank, City here. In Rubin v. cision Murray implicit- thus and that prayers, an 1194, 124 Cal.Rptr.2d 867 Cal.App.4th does opinion that practice, ly approved one, (2002), nearly identical to this a case content of rely upon the mention or violating the court struck down the D.C. Cir- In addition to prayers. city a council’s policy constitution federal courts have heard Murray, several cuit offered, rotating clergy who using legisla- Congress’ challenges cases, overtly majority pray- Christian However, cases none of these prayer. tive Society Separationists v. ers. And prayer.4 turns on the content (Utah 1993), Whitehead, 870 P.2d Snyder v. upon also relies city practice of upheld court a council’s F.3d 1227 City Corp., 159 Murray constitu- legislative prayer under the Utah Cir.1998) (en banc), in the court large part pointedly tion in because particular a city’s refusal to let upheld a of the invocations. nature nonsectarian invocation that aggressive make an citizen to teach the rule that appear These cases Christianity legislative prayer derided prayer is constitu- legislative nonsectarian an that such The court held generally. sound, appeals, in- tionally but sectarian conflict with directly invocation would na- overtly of an Christian cluding those prayer that against prohibition Marsh’s ture, are not. partic- a “disparage[s]” “proselytize[s]” or law, we reading In initial of the case our Id. at 1234. ular “faith or belief.” Speaker’s read- encourage of Marsh’s find little offered its view court then an appears It that such ing of the law. stating generally, limitations nugatory critical approach would render “aggressively advo- or proselytizes by the Su- expressed limitations approved facts and religion prohibited; cates” one Marsh, though even contrast, Court “although taking preme often prayer, many other lower federal that reflect a Ju- Court itself of invocations the form dispositive. points those ethic, non- courts have found involves typically deo-Christian practices that congressional pointing and solem- requests for wisdom sectarian sustained, but without reference have been blessing for divine on nity, as well as calls contents, Id.; asks that we he body.” prayers’ see work of the tion, prayer was the content of the standing was resolved on 4. One of these cases Baker, (The 829 F.2d 1133 advance. court's grounds, v. known in see not made Kurtz (D.C.Cir. 1987), simply tracks another gives impression this issue discussion of generic challenge Murray reject sec- attempt the difficult issue of to avoid by paid chap practice of sum, inauguration.) tarian at the lain, F.Supp.2d Eagen, Newdow v. see rely on either do not discuss these cases case, (D.D.C.2004). Newdow A related 40-42 congressional prayer. the sectarian nature (D.D.C. Bush, F.Supp.2d 288-90 squarely con- decide a case Should court 2005), No. 2005 WL aff’d issue, fronting a case would be such order), 16, 2005) (D.C.Cir. (unpublished Jan. deciding authority the Indiana important attempt enjoin the invocation at rejects an time, here, question dispute but until inauguration, presidential but does the 2005 prayer not relevant. congressional is rely the sectarian nature of invoca- not on clergy is to ask to “strive simply that rent cases issues into those read simply is prayer.” the courts. an ecumenical It addressed were not prac- of the failure to follow this toleration several other ar- advances Speaker The and produced litigation that has this tice now, plenary and on require guments that court. required the action of the federal sug- He review, respectful attention. our injunction, reply invoking clerics from gests prohibiting that and, it prayer to cut off all would chose the Free Exercise violate Christ aspect of appear, has sacrificed the core First Amend- Speech Clauses Free beginning the session with issues, while new to These ment. tradition — guidance an for divine order have been ad- invocation jurisprudence, circuit’s —in and have been the House’s by other courts to continue a deviation from dressed argu- fate has met the not rejected. prayer The same articulated desire that the are sec- deciding prayers which any denomina- particular ment identified with judges.5 role for inappropriate reply tarian is in Speaker responds tion. The his suggestion respectful that “a to be brief Injury Irreparable B. legislative setting in is present those Factors Other remotely binding fed- comparable not us, the other case comes As this injunction.” Reply Appellant’s eral court deciding whether to main consideration omitted). (emphasis Mem. at 5 He also stay is the submission grant a legislature that the suggests an affidavit Representatives over the House of process ought entangle itself irrepara will be harmed presides he distinguishing acceptable between nonde- of one. Mr. Bosma bly the absence non-acceptable nominational harm would stem from that such contends prayer. Although this denominational long tradition of fact that Indiana’s deserving plena- of more certainly claim broken ab offering invocations would be ry study merits re- respectful on the no at all can sent a view, say requiring we cannot of the district court’s continue in the face legislature perform a task undertaken However, injunction. as the district court begin countless other bodies that out, harm to the pains point took proceedings their is an ir- legislative tradi Representatives’ House of reparable especially leg- when the harm — the terms of the tion need not occur under goal. islature itself has articulated such a injunction injunction. permits prayer relies on two other cases to long it of a nondenominational so appeal courts of support his view that not “use Christ’s name or nature and does grant stays in should sensitive Establish- appeal.” title or other denominational * Bosma, City ment Clause cases. Books 2006 WL at Hinrichs v. (7th Cir.2001) 2006). Elkhart, (S.D.Ind. Indeed, Jan.24, (Rip- 289 F.3d 826 ap it J., chambers), ple, stayed this court tradition is left pears injunction. ruling cur- after pending intact The House’s mandate certiorari Simpson, point, rather than for themselves alone. For the 5. For the former see itself; 288; point, Verde Sch. Dist. latter Mr. Bosma’s Bacus v. Palo see Marsh Unified Educ., Fed.Appx. position Cir. that courts not determine which Bd. Rubin, 2002); prayers Cal.App.4th at all are sectarian was Justice Brennan’s However, sharply view which note that individuals have in his dissent in Marsh. difficulty noting speech rights restrained and free exercise Court found no speaking government, in that case were ecumenical. when on behalf of stay ought grant- a to be establishing a city’s display of six- a unconstitutional ed. of the monument granite three-foot foot outside the itself

Ten Commandments Denied Motion of the monu- Hall. But the removal City KANNE, Judge, dissenting. Circuit in its merits this court stated ment —which Elkhart, City v. opinion, Books I believe the likeli- Because (7th Cir.2000), a 292, would be diffi- 307-08 greater hood of success on the merits is cult, sensitive, time-consuming task— and it, and the majority than the deems balanc- Here, by undertaking. a permanent I granting stay, favors ing equities of the contrast, simply toler- legislature must respectfully dissent. permitting in interruption temporary ate a only Supreme con- The time the Court admis- by its own type constitutionality sidered the sion, type of the nondenominational is not approved practice. it of the also Speaker

prayer that it desires. Chambers, 3330, 103 S.Ct. in Marsh Eighth Circuit (ex- (citations omitted); regard legislative prayer. Id. City see also ACLU v. Charles, F.2d Cir. plaining. “degree that Marsh reflects a St. 1986) (noting the distinction between free spiritual practices deference to the internal religion establishment speech and sovereign”). of another ... That defer- harm). is irreparable This determining judges ence cautions we federal where the state is interfer also not a case prudently very move in this sensi- should ability freely plaintiffs’ ing with law, in- tive area of constitutional City religious beliefs. St. exercise their being cludes reluctant to interfere with a Charles, potential at 274. The practices until it spiritual state’s internal is case, assuming legis harm in this necessary. clear that it is unconstitutional, is lative at issue certainly due here. The Deference the ero general: a harm to the Assembly, democratically Indiana General religious liberty and freedom sion by elected the citizens of the State of impermissible to a arise due state’s Indiana, opening has its sessions with been Id. at 275. religion. affiliation with Such invocation, a prayer frequently deliv- importance greatest a harm is of the —the cleric, religious ered for the last 188 Clause, course, repre Establishment years. past years If for those highly by the Fram sents a value held so legislative prayer at issue here has oc- in the First ers that it was included wrong curred on the side of what is at best But it does not follow that Amendment. line, murky constitutional then we can at will religious freedoms we hold so dear clarity provide opinion least of our irreparably injured in time that it be court, placing legislative body takes the United before state un- 'possibly Court, supervision. States the con der federal to evaluate stitutionality legislative pray of Indiana’s legal uncertainty spe- caused Any dispelled by er. doubt on this issue is place legislative prayer cial holds in our the fact that the Indiana General Assem heritage nation’s and our Establishment bly engaged has been in this jurisprudence, irrep- Clause the absence of nearly two centuries. harm, arable and the deference due to The harm which leads me to conclude sovereign’s spiritual prac- another internal stay granted that a should is also of a require tices that we the district public nature. Federalism concerns de injunction court’s at least until can recognize important mand that we in determine for ourselves whether a consti- Assembly terest the Indiana General tutional violation has occurred. in conducting legis its internal unfettered a federal lative injunction narrowly

court’s one —even injunction

drawn. The issued this case deeply rooted tradition that

covers a “has part society.” of the fabric of our

become

Marsh, 103 S.Ct. 3330. point, “special this is a case”

More to the sovereign’s

that deals with another “inter spiritual practices.”

nal Van Zandt v.

Thompson, Cir.

1988). such, And as we owe deference Assembly’s practice

the Indiana General notes (b) 2. See (prohibiting Ninth Cir. R. 36—3 cita- sible—a view that the Court later

Notes

notes (1983). A in key dispute 77 L.Ed.2d 1019 certiorari, al- stayed pending the mandate now, case, appears it is whether its opinion explaining there is no though a line drawn between sec- Marsh rests on noted, court But as the district reasoning. legislative prayer. tarian and nonsectarian the circum- entry of a under supporting the While there is caselaw surprising. should not be stances here only proposition approves that Marsh authority on There was no Court still legislative prayer, nonsectarian there time, at that legislative prayer the issue powerful arguments remain to the con- decision Eighth Circuit’s trary, not the of which is the Marsh least would have presumably favor plaintiffs’ point. majority’s ambiguity curious on the state-salaried firing meant Nebraska’s other factual differences Moreover, be taken steps No such need chaplain. ruling in this case. drive the ultimate this case. Clause nuanced nature of Establishment recog- general contends that Finally, Speaker jurisprudence lim- as hold- plaintiffs harm to the nized status of countervailing in our nation’s ing unique place amount of tax dollars own ited to the minuscule difficult, flatly impossible, if not position history But make it at stake here. significant law. See lacks a say this court’s case that the contradicted Charles, F.2d at 274-75 of success on the merits. City probability St. injury includes (noting plaintiffs’ arguments for strong legal I see While Clause putative harm of the Establishment merits, my real parties as to both violation). plaintiffs Here the harm to the on majority centers disagreement with religious liberty than a denial of is no less equities. At the out balancing probable form of a violation set, that the harm it should be noted First Amendment. being speech is is not that their plaintiffs Thus,' this is not a case where restricted. Conclusion di speech will be absent immediate relief Burns, 427 Elrod v. luted or lost. See Speaker’s chance assessing n. 373-74 96 S.Ct. appeal and U.S. on the merits of his success (1976) im (emphasizing injury L.Ed.2d 547 slight temporary balancing the political timeliness of portance of the stay, must conclude he faces absent message) conveying the intended speech not met his burden

Case Details

Case Name: Hinrichs, Anthony v. Speaker House Rep IN

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 1, 2006

Citation: 440 F.3d 393

Docket Number: 05-4604, 05-4781

Court Abbreviation: 7th Cir.