Hinrichs v. Speaker of House of Representatives of the Indiana General Assembly

against him, scheming preventing him from reading documents relating to

his case. These matters require further

exploration court, in the district pending

which the will appeals remain on our dock-

et.

REMANDED.

Anthony HINRICHS, Henry Gerner,

Lynette Herold, al., et Plaintiffs-

Appellees,

SPEAKER OF the OF HOUSE REPRE

SENTATIVES OF the INDIANA ASSEMBLY,

GENERAL Defendant-

Appellant.

Nos. 05-4604, 05-4781.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 2006.

Decided Oct.

Rehearing En Banc Denied

Jan. 2008.* * Rovner, Judges Wood, Evans and Williams in the consideration or petition decision of the grant voted to petition for rehearing en rehearing en banc. Judges banc. Flaum and Tinder part took no Fitschen, Legal Founda- Nat.

Steven W. Beach, VA, Amicus Curiae. tion, Virginia Firm, Weller, Gibbs Law J. Barbara FL, Seminole, Curiae. Amicus Baum, Katten Muchin Ro- K. Jonathan IL, Amicus senman, Curiae. Chicago, WOOD, RIPPLE, KANNE Before Judges. Circuit RIPPLE, Judge. Circuit Anthony Hin taxpayers, Four Indiana Gerner, Lynette Herold richs, Henry brought this action Quigley, Francis White Rep House of Speaker against As the Indiana General of resentatives practice House’s challenging the sembly, prayer. awith each session opening Indiana Civil (argued), Falk J. Kenneth the plaintiffs agreed court district IN, for Union, Indianapolis, Liberties prayer as legislative practice of Plaintiffs-Appellees. the House violated implemented & (argued), Winston N. Johnson Steffen perma and issued a Establishment Clause DC, M. Thomas Strawn, Washington, timely ap Speaker injunction. nent General, Attorney Fisher, Office stay the district sought pealed and Defendant-Appellant. IN, for Indianapolis, before briefing full ruling pending court’s stay noted denied We this court. Staver, Staver, Lib- L. D. Anita Mathew only on a based decision was that our Maitland, FL, Stan- Counsel, Eric W. erty sur understanding of the facts preliminary Lindevaldsen, Lynchburg, M. ley, Rena practice. See Hinrichs Indiana’s rounding VA, Amicus Curiae. Cir.2006). (7th Bosma, F.3d 393 Jones, for Foundation Moral M. Gregory supple argument and briefing, oral After AL, Amicus Curi- Law, Inc., Montgomery, now hold that briefing, we mental ae. standing maintain not have do McKoy, Dean, Dean & D. the dis reverse Michael therefore We this action. WI, Waukesha, Curiae. the ac Amicus and remand judgment trict court’s want to dismiss for instructions tion with Picarello, Jr., Fund Becket Anthony R. jurisdiction. DC, Liberty, Washington, Religious for Amicus Curiae. I Bos- Jr., Coleson & Bopp, Bopp, James BACKGROUND IN, Haute, Amicus Curiae. trom, Terre Benson, Min- Faegre & Oort Facts Aaron Van A. MN, Amicus Curiae.

neapolis, authority vested Indiana’s Assembly, which Indiana General in the Dept, of Jus- Sturgill (argued), Lowell House the Senate Sec., composed Div., Appellate Rights tice, Civil Represen- Representatives. DC, Amicus Curiae. Washington, tatives meets in its chamber in the Indiana forth logistical details of the visit. The Statehouse, which has seating for rep- letter also states: resentatives and an gallery observation The invocation is to be a short prayer about 75 to 100 members of public. asking guidance and help in the mat- ters that come before the members. We Rule House 10.2 calls for prayer a or you ask that strive for an ecumenical given invocation to be each meeting day prayer members, as our staff and con- before the House any conducts business. stituents come from different faith back- For the years prior to the time the grounds. you Thank your consider- action, instituted this the Indiana ation. House of Representatives opened day each R.16, Att. 2. No guidance further provid- is with an invocation. The invocation occurs ed and no review of the content of the immediately after Speaker’s the call to or- prayer is prior conducted to being its giv- der. No business place takes en; typically, Speaker does not know until prayer finished, and no one is the identity of the minister until a few required to remain in the House chamber prior minutes to his or her introduction.2 during prayer.1 The invocation is de- livered from stand, and, the Speaker’s ac- When a visiting clergy member has not rules, to cording House no one enter been designated give the prayer for a the Speaker’s stand without invitation legislative session, representative a has from Speaker. given the invocation. occasion, On such an the representative does not receive guid- The invocation frequently is by delivered anyone ance from associated with the clergy visiting who have volunteered to House concerning the form or content of pray and are nominated a representa- prayer. No one associated with the occasion, tive. On representatives have House advised, ever has or corrected ad- sponsored clergy do who not share their monished a representative minister or own religious affiliation. To nominate a about religious content of an invoca- member of the clergy, a representative tion. fills out a Day” “Minister form During session, the 2005 House the invo setting forth the dates when clergy cation was delivered by priests, Protestant member is available. The representative ministers, several representatives, a rabbi then submits the form to the Majority and an imam. Of forty-five prayers Chair, Caucus who schedules the cleric to offered during this session for which text deliver the invocation. No minister who available, twenty-nine prayers refer has requested sponsorship ever has been enced “Christ”; or “Jesus” others invoked turned down. “God,” “Lord,” “Almighty God,” or “Heav Prior to the date which the visiting enly Father.” Id. Att. 6 at 7 (prayers of clergy member is offer invocation, January 2005 and February House staff 2005). member sends a letter setting least At one prayer was not ad parties stipulated that members of the desire to immediately leave the individual will public seated in balcony are “discour- freely.” allowed to leave R.17 at 1-2. aged] from leaving the balcony during the Pledge Allegiance or the Invocation so as to exception 2. An typical arrangement However, minimize noise. if individual occurs Speaker when the sponsored has indicates that he objects she prayer day. cleric of the Pledge or if expresses the individual Additionally, sessions mailing. at 16- id. deity. See specific to a dressed Inter- on the are broadcast 2005). Indiana April (prayer hour, or per $1.88 cost of net $112.85 overtly Christian were prayers Several offered minute; whether prayer, each per cler- instance, visiting one For in content. repre- clergy or member of by a a book of the from verses several quoted ic funds minutes. All sentative, a few lasted see prayer, of his part Testament New came from costs cover these used to 28, 2005); still February at 8 (prayer id. appropriat- funds were budget; no general “saving power others referred expenses. these to cover specifically ed of March Christ,” (prayer id. at Jesus savior Jesus 2005), “our lord Proceedings B. District 2005), April Christ,” (prayer at 14 id. 2005, taxpay 31, Indiana four May On God, id. son of the Christ as to Jesus or Gerner, Hinrichs, Henry ers, Anthony 2005). Many of 11, April of (prayer Quig White and Francis Herold Lynette to the doxol- limited references were these declaratory and action for brought this ley, There also prayer. end of the at the ogy existing the challenging injunctive relief not tied that were given invocations were Represen House of the Indiana of practice For or denomination. faith any specific to to be prayers sectarian to allow 14, tatives April on instance, offered prayer the session. legislative each to masters, given prior Buddha, Zen the 2005, referenced Representa House of of the Speaker the Bible. story and a from philosopher Assembly was General the tives of Indiana only invoked others 16-17. Still id. at See In the com the defendant. named as requested simply and “Lord” “God” they did plaintiffs stated the plaint, blessings for Assembly the for wisdom practice legislative of the object to not of See, (prayer id. e.g., the State. of the practice claimed that the prayer, of March 19, 2005); (prayer at 14 id. April violated Representatives of House Indiana as 2005). offered were prayers 31, Some it allowed because member, First Amendment clergy of prayer personal offered. to be prayers 5, overtly sectarian April of (prayer see, at 14-15 e.g., id. and, complaint Speaker answered on offered to 2005); purported be others lack of matters, asserted among other see, assembled, id. at e.g., those of behalf standing. 2005). 18, April (prayer of court the district as- On October costs minimal, there were Although and stipulated facts a trial offering the conducted of the practice with sociated On parties. of the submissions written clergy to sent letter The initial invocation. en 30, 2005, district court November a session mailing. Before per cost $.54 declaring Speaker’s a final order some- tered members commenced, the House to be prayer allowing sectarian of clergy practice photographs took times Clause Establishment of the violative These the invocation. give to scheduled from Speaker enjoining the permanently were print and per cost photographs $.68 to be offered prayers sectarian “permitting A print. per cost of $1.60 mailed at of proceedings official of the part as was sent letter thank-you sometimes at 1.3 R.31 Representatives.” of per at a clergy, $.54 cost visiting also permitting sectarian nently enjoined from decreed: court Specifically, the district official part offered prayers House of Speaker defendant 1. That Representa- of the House proceedings As- General the Indiana Representatives of Speaker continue chooses If the perma- tives. capacity, is sembly, in his official The district court first addressed the “means at very govern least that Speaker’s contention that plaintiffs ment preference demonstrate a lacked standing bring this action. (includ particular one sect or creed view, the district plaintiffs court’s had ing preference for Christianity over established standing under the religions). other ‘The clearest command Supreme Court’s and this court’s case law. of the Establishment is that Clause one It stated: religious denomination cannot be official ” ly preferred In this case the over prayer another.’ prac County House’s Allegheny tice paid funds, v. indeed American Civil Liberties Union,

through 605, 109 confirmation thank-you let ters L.Ed.2d 472 photographs clergy, sent to quoting Larson Valente, web-streaming additional time. Though (1982).

these directly costs are not L.Ed.2d 33 attributable sectari to the content invocations, content majority substantial directly are official prayers attributable practice Indiana House therefore prayer that plaintiffs prayers takes the chal outside the lenge. safe Because harbor Court recog inclusive, Indiana nized for who proven have non-sectarian legisla “a prayers tive appropriation Chambers, measurable Marsh v. disburse ment [public] of U.S. funds solely occasioned 77 L.Ed.2d (1983). of,” the complained activities Plaintiffs standing Dore have as Education], mus Indiana taxpayers [v. Board to bring claims, their of [429,] 434, and are entitled to declaratory L.Ed. 475 and [(1952)], injunctive plaintiffs four all relief. This relief will not prohibit under III Article House the the from opening consti its ses of sion tutionality prayers the official if so, it pray chooses to do ers. but will require that any prayers official and non-sectarian, inclusive and not R.30 at 24. The district court then turned particular advance one religion. question to the of the constitutionality of the R.30 at 2. Day” House’s “Minister of the pro-

gram. It summarized findings its of fact After the injunction issued, court’s the and conclusions of law accordingly: Speaker filed a motion pursuant to Feder-

[T]he evidence shows that the official al Rule 59(e). of Civil Procedure The prayers offered to open sessions of Speaker the claimed that the injunction court’s Indiana House Representatives re- legal “manifest[ed] clear error because it peatedly and consistently advance the jurisdiction exceeded] the Court’s in tax- beliefs that define the Christian religion: payer-standing cases” and “because it the resurrection and divinity of Jesus of overly [wa]s broad and d[id] conform Nazareth. The Establishment to the conduct challenged Clause or the relief permit prayers part non-sectarian as of the appeal. injunction nominational ap- This proceedings, official he per- advise shall all plies Speaker, agents, and to his (a) offering prayers sons such pray- that the servants, employees, attorneys, and all ers must be non-sectarian and must not be persons other in active concert with them proselytize used to any or advance one faith who receive actual injunction notice of this disparage any belief or to other faith or by personal service or otherwise.

belief, (b) prayers should not R.31 at 1-2. use Christ’s name or title or other de- House’s challenged the R.33 at by the Plaintiffs.” requested un- conducted prayers of official practice maintained Speaker the Additionally, for a which calls Rule the der [gave] vague injunction [wa]s “the calls the House Speaker the after prayer clear standard the House no Speaker Alle- Pledge of and before also to order Speaker Id. The application.” noted, plaintiffs showed As giance. stay enforcement a motion filed or House inviting clergy practice court’s the district injunction pending pro- prayer has to offer the members motion. Rule 59 of his disposition and exclu- of sectarian pattern duced motions. both plaintiffs opposed If the court prayers. sionary Christian 28, 2005, court issued December On prayers injunction limited the had Rule 59 Speaker’s denying an order it House Rule pursuant offered order, district court its motion.4 exists, injunction would currently argument Speaker’s rejected first affected, example, not have him the choice give court should “that the the or- would switch rule that amended (a) modifying prayer either between Allegiance Pledge der constitutional it bring within practice prayer of sectarian practice or a prayer, (b) public eliminating bounds, or session instead end each the unconstitu- continuing spending but beginning. pray- Christian of sectarian pattern tional court stated: at 3. The district R.47 ers.” at 7-8. an- is to the alternatives To describe addressed court Finally, the district plain- question. swer injunction is that “the contention Speaker’s public standing because

tiffs have of what fair notice give vague to him too the authorizes the law but expenditures, with it.” comply required do he the an end to unconstitu- order court to court be- district Although the at 9. Id. injury gives that practice. tional suffi- [wa]s here “injunction that the lieved the standing is taxpayer-plaintiffs the answered it nevertheless ciently specific,” funds into which public the misuse of “because questions Speaker’s some taxes. their pay stake.” interests at larger public cases, injury the standing In taxpayer that “[t]he explained 10. The court Id. at en- remedied plaintiff Chris- to sectarian not limited injunction is funds, public expenditure joining the focus of the simply was prayers”; tian enjoining may also be remedied evidence “the because decision the court’s especially practice, the unconstitutional prayer.” of Christian pattern here shows issues do constitutional where the on also elaborated The court public expenditure the on depend “are prayers constitute what funds. tradition,” spe- in the Christian sectarian omitted). (citations Id. at 3-4 or otherwise “proclaim cifically those that of Naz- that Jesus the beliefs communicate the turned to court then The district Messiah, Christ, the Son the the areth was the terms of challenges to Speaker’s Savior, he was or that God, or the disagreed court The district injunction. will return resurrected, he or that injunction Speaker with divine.” Day or otherwise Judgment opening pray- have been limited should clarification, court With at 16. ers: stay. tion to Speaker’s mo- rendered moot 4. This order

denied the motion to alter or amend the down its decision in Hein v. Freedom from — judgment. Religion Foundation, Inc., U.S.-, (2007), S.Ct. 168 L.Ed.2d 424 Speaker timely appealed to this which the significant guid- Court offered court. ance concerning the taxpay- breadth of its er standing jurisprudence. We invited the II parties to supplemental submit briefs dis- DISCUSSION cussing impact of Hein on plain- tiffs’ in this case. we turn Before to the substantive claims, we first must address “thresh Hein, In light Speaker reasserts jurisdictional question” old of whether the plaintiffs lack standing here. Ac- plaintiffs possess requisite standing to cording to Speaker, pursue this action. Steel v.Co. Citizens Court made clear in DaimlerChrysler Env’t, 83, 102, a Better 523 U.S. —Cuno, Corp. -, v. (1998). S.Ct. 140 L.Ed.2d 210 1854, 1863, (2006), 164 L.Ed.2d 589 party “asserting jurisdiction” federal must standing requirements “carry the burden of establishing [its] apply equal force to standing under Article III.” Daimler- taxpayers. Accordingly, Hein direct- — Chrysler Cuno, U.S.-, Corp. 126 ly applies to this action and “forecloses 1854, 1861, (2006). 164 L.Ed.2d 589 taxpayer standing in this case because the When we approached first this issue on Plaintiffs have not identified —and cannot Speaker’s motion stay, we noted identify any specific legislative appropri- — that, in order to establish stand- authorize, ations that ‘expressly direct or ing only basis for standing asserted even mention expenditures —the ” here5 —the plaintiffs “must demonstrate plaintiffs] [the complain.’ Appellant’s that the challenged program is supported Supp. Br. at 5. part, For their by monies through raised taxes and that maintain that Hein did nothing to disturb the use of those monies specific exceeds a Cohen, the holding of Flast v. constitutional limitation on pub- the use of L.Ed.2d 947 or of funds, lic as such the First Amendment’s Doremus Education, v. Board 342 U.S. of prohibition on respecting laws an 434-35, estab- 96 L.Ed. 475 Hinrichs, lishment religion.” of which, F.3d unlike dealt explicitly at 396. Since briefing in this case was with question the of state taxpayer stand- completed, the ing. Court handed According to plaintiffs, the all that 5. As noted by dissenting colleague, our pe ject a to "direct and exposure" unwelcome to cuniary only interest is not the means of es the prayers job as a result of his as a tablishing standing. See at lobbyist. however, dissent 605-06. plaintiffs, The abandoned alleged In the context of an Establishment alternative basis for in the dis- violation, Clause we have stated "allega that trict court when Mr. being ceased Hinrichs tions of and exposure direct unwelcome lobbyist to a and informed the court that "he ha[d] religious message" are sufficient to show the plans no lobby any organization to for or injury-in-fact necessary support standing. to entity in the Indiana Assembly.” General R. Ill., Doe v. County Montgomery, Thereafter, 41 F.3d plaintiffs at 1. the relied of exclu- (7th Cir.1994); sively see also ACLU v. on their taxpayers support status as to Charles, City (7th St. 794 F.2d standing. 268-69 Consequently, in of order maintain Cir.1986). plaintiffs action, initially The asserted plaintiffs their the must meet the re- and, both standing as respect with quirements taxpayer standing set forth Hinrichs, to Mr. standing as individual sub- below. remote, fluctuating and funds, so of the tax- of require Flast and Doremus for an uncertain, is no basis afforded that injury, pocketbook” “good-faith ais payers powers of court preventive appeal to the is, that interest is, financial “a 597. equity.” Id. unconsti- be, by the injured threatened on con passing the explained Doremus, 342 U.S. conduct.” tutional statute, plaintiff absent stitutionality of a Supp. 394; Appellees’ see 434-35, 72 S.Ct. a direct concrete has suffered who Br. at enact congressional of a injury as a result dis- the Court’s consideration Upon of the ment, in a violation result Hein, supple- parties’ position powers: separation of that Hein believe arguments, we mental se to review power per no haveWe de- preliminary our to revisit requires us ground on the Congress annul acts possess that the termination That are unconstitutional. action. maintain this standing to requisite only when considered be question determination, a our explain injury In order direct for some justification jus- threatened, discussion plenary presenting more suffered standing to issue, upon such to rest especially is made standing, ticiable exercised is power Clause act. Then Establishment alleged declaring ascertaining and that of violations, is order. controversy.... to the applicable law power must who invokes party Flast Standing Prior Taxpayer A. show, only stat- not be able to Cohen invalid, he has sustained but that ute is begin with must discussion Our sustaining danger immediately or is pronouncements initial Supreme Court’s of its injury the result some direct in Froth forth set taxpayer standing he enforcement, merely that and not Mellon, Massa with decided ingham v. in com- way some indefinite suffers in Mellon, chusetts v. If a case generally. people mon case, (1923). In that 67 L.Ed. court presented relief preventive chal taxpayers, as federal plaintiffs, effect, the execution not enjoins, in Mater constitutionality of the lenged official, statute, the acts but appropri grounds nity Act on notwithstanding. Here the statute “for Act by the were authorized ations case. no such plaintiff parties national, to the local purposes of words through forms Looking of the statute states,” merely the effect it complaint, of their substance namely depart- property, plaintiffs’ executive take that officials executing dollars, due process government without ment of tax their as- of Congress an act execute 43 S.Ct. 597. and will law. unconstitutional; and a serted to the interests determined Court so do To prevent. to are asked we sufficiently di not taxpayer were federal contro- judicial a be, to decide not general chal a support to rect certain of au- position a to assume versy, but appropriations congressional lenge to acts governmental thority over moneys of in the interest “His statute: an au- co-equal department, another and taxation from Treasury partly realized — possess. we do plainly thority which shared sources—is from partly other 488-89, 43 S.Ct. 597. Id. at others; comparatively millions of denying for rationale articulating the indeterminable; effect In and the minute and taxpayers, federal standing out any taxation, payment future upon noted that the interest of federal taxpayers enforcement, its and not merely that he ” with respect to the federal treasury were suffers some indefinite’ “very from that different” of a municipal (quoting S.Ct. Frothingham, taxpayer challenging allegedly illegal 597). The Court then held municipal use of funds: that the case or controversy requirement a taxpayer interest of of a is met munici- state taxpayer only when the pality in the application moneys taxpayer brings of its good-faith “a pocketbook direct and immediate and the remedy by action.” Id. It question, is a the Court injunction prevent stated, their misuse is not possession “of requisite fi- inappropriate.... is, reasons which nancial interest that or is threatened to support be, extension of the equitable injured the unconstitutional con- remedy to a single taxpayer in such duct.” Id. at 394. Finding upon cases are peculiar based rela- this financial interest lacking, the Court tion corporate taxpayer to the held that taxpayers state could not corporation, which is not without some maintain their the statute. resemblance that subsisting between B. Flast v. Cohen

stockholder private corporation. 486-87, Id. at 43 S.Ct. 597. In the Court considered whether there any were exceptions to the bar The Court next taxpayer addressed against standing erected in There, in Doremus. state tax- Frothingham. Specifically, the Court payers had challenged a New Jersey statute to decide “whether the Frothingham bar requiring the recitation of five verses of rier should be lowered when the Old Testament at the beginning of attacks federal statute on ground each day; school activity “sup- was not that it violates the Establishment and ported Free by any separate tax or paid Exercise Clauses of the First from any particular Amend appropriation,” nor did ment.” Id. at 88 S.Ct. 1942. At “it issue add[ ] sum whatever to cost in Flast was the constitutionality of the Doremus, conducting school.” 342 U.S. at Elementary Secondary Education Act S.Ct. 394. 89-10, Pub.L. No. 79 Stat. 27 In deciding whether could (codified § at 20 U.S.C. 241a et seq. pursue their challenge, the Court first reit- which, (1964)), among matters, other “ap erated its statements from prior cases that propriated ... [funds] to finance instruc “the interests of a taxpayer] [federal in the tion in arithmetic, reading, and other sub moneys of the treasury federal are too jects schools, in religious purchase indeterminable, remote, uncertain and in- textbooks and other instructional materials direct to furnish a basis for an appeal to use such schools.” Id. at preventive powers of the Court over S.Ct. 1942. their manner of expenditure.” In addressing issue, the standing S.Ct. 394. The Court went on to ob- Court first serve turned to holding that what it had its said “of a Froth ingham. case, statute” the Court “equally true when a recount ed, it had Act [wa]s party assailed: ‘The who invokes

the power show, must be able to only noted that a taxpayer’s federal “interest that the statute is invalid but that he has moneys of treasury ... is sustained or immediately is in danger of comparatively minute and indetermina- sustaining some injury direct as a result of ble” and that “the upon effect future

593 that, aspect as “an also noted The Court of the taxation, out any payment of “standing is surrounded (is) justiciability,” remote, fluc- of funds, ... (Treasury’s) vagaries and result, by complexities the same aAs and uncertain.” tuating 98, Id. at 88 justiciability.” S.Ct. inhere had failed ruled Court However, complexi- “[djespite 1942. injury” nec- “direct type of allege uncertainties,” the contin- Court ties and standing. confer essary to ued, Frothing (quoting 92, 1942 88 S.Ct. Id. at given form can be meaningful some 597). ham, 43 S.Ct. at 262 U.S. on placed limitations jurisdictional opinion that its then observed Court by concept power federal court some engendered had Frothingham standing. philo legal concerning the confusion standing is aspect fundamental standing. This confu bases sophical seeking to party it focuses on the continued, suggested that sion, the Court before a federal court get complaint his a fresh examination undertake it “should he wishes to and not on the issues sue in a standing limitations upon of the “gist question of the adjudicated. The of those application court and federal - party seek- standing” is whether 94, 88 suits.” limitations personal “alleged such ing relief has 1942. S.Ct. controversy stake in the outcome Court, however, not turn imme- did assure concrete adverseness as to standing, but first diately concept presentation of is- sharpens the which on federal placed the limitations examined largely the court so upon which sues controversy require- by the case courts of difficult con- depends for illumination Justiciability, III. Article ment questions.” stitutional merely pruden- explained, was not Court v. 99, (quoting 1942 Baker at 88 S.Ct. Id. III: Article tial, firmly rooted in 691, 186, 204, 7 Carr, 82 S.Ct. 369 U.S. in Arti- embodied implicit policies [T]he added). (1962)) (emphasis L.Ed.2d 663 alone, impose the III, history and not cle party” was “proper of a requirement This opinions on federal advisory against rule w[ould] “federal courts necessary so that judicial power When federal courts. ‘ill-defined contro- to decide not be asked ” validity to pass upon invoked issues,’ constitutional versies over and Executive by Legislative actions or “ab- “hypothetical” which were cases Government, rule Branches at U.S. stract.” opinions implements advisory against v. Pub. Workers (quoting United powers prescribed separation of Mitchell, 67 S.Ct. confines the Constitution Ins. Aetna Co. L.Ed. 754 Life Arti- them assigned to the role courts 227, 240, Haworth, 57 S.Ct. III. cle (1937), respectively). L.Ed. 617 the relation- then summarized The Court However, the Id. ju- Article III standing and ship between ‘many acknowledged “[t]he also risdiction: con policy cause pressures’ subtle III limitations Thus, Article in terms of the constitutional to blend into

siderations ques- jurisdiction, federal court justicia make the Article III limitations only to wheth- related tion of shift one of uncertain bility doctrine adjudicated to be sought dispute er the ing contours.” adversary in an con- omitted). presented will be (footnote historically text and a form gressional viewed as taxing spending and power capable judicial resolution. It is for and not simply that the enactment emphasis that reason that the generally beyond stand- powers delegated ing problems I, is on party Congress by § whether the Art. 8. When both jurisdiction invoking established, federal court nexuses are has “a the litigant will personal have stake in the shown a taxpayer’s outcome of the stake in the controversy,” outcome controversy and whether dispute and will be a proper upon appropriate touches legal party “the relations par- invoke jurisdiction. federal having legal ties court’s adverse interests.” 102-03, Id. at 101, S.Ct. 1942. Baker, Id. at (quoting 88 S.Ct. 1942 369 U.S. at and Aetna Turning then specific to the plaintiffs in Co., Ins. U.S. case, the Court held that Life each nexus 461, respectively). had been established. respect With nexus, first taxpayers’ challenge was requirement This did not eliminate made to an exercise of Congress’ taxing possibility taxpayer that a federal and spending power I, under Article Sec- requisite personal “the stake in the tion 8 of the United States Constitution. outcome” particular of a necessary case With respect nexus, to the second standing. establish 392 U.S. at Court noted that the taxpayers alleged Indeed, 88 S.Ct. 1942. the Court stated challenged expenditures violated requisite stake could be estab Clause, Establishment operated lished under the following circumstances: as a specific limitation on Congress’ spend- The nexus demanded of taxpay ing power: history vividly “Our illustrates ers aspects First, has two to it. that one of specific evils feared taxpayer logical must establish a link those who drafted the Establishment between that type status and the leg Clause fought adoption its was that Thus, islative enactment attacked. the taxing and spending power would be proper will be a party allege used to favor one religion over another or the unconstitutionality only of exercises to support religion in general.” congressional power under the taxing 88 S.Ct. 1942. spending I, § clause of Art. Constitution. It Court then will not be summarized holding sufficient to its accordingly: allege an incidental expenditure of tax

funds the administration of an essen [W]e hold that a taxpayer will have tially regulatory statute. require This standing consistent with Article III to ment is consistent with the limitation judicial invoke federal power when he imposed upon state-taxpayer standing in alleges congressional action under federal courts in Doremus v. Board the taxing and spending clause is in Education, derogation of those constitutional provi- (1952). L.Ed. Secondly, taxpay sions which operate to restrict the exer- er must establish a nexus between that cise of the taxing and spending power. precise status and the nature of the The taxpayer’s allegation in such cases infringement constitutional alleged. Un would be that his money tax is being requirement, der this must extracted spent in violation spe- show that the challenged enactment ex cific protections constitutional against specific ceeds constitutional limitations such abuses of legislative power. Such imposed upon the exercise of the con- an injury is appropriate judicial re-

595 1942). 102, 88 S.Ct. 392 U.S. at ing has established dress, taxpayer and the Richardson, v. Similarly, in United States his status necessary nexus between 2940, 41 L.Ed.2d 678 94 S.Ct. 418 unconsti- allegedly nature of and the (1973), taxpayer that a did the Court held his claim of support to action tutional his action standing pursue not have Un- judicial review. to secure standing accounting of ex sought a detailed circumstances, feel confi- we der such Intelligence by the Central penditures framed will be questions dent that Court, the tax According to Agency. necessary specificity, with a taxpayer his status as had not tied payer the neces- be contested issues will nor had spending power,” “taxing litigation that the sary adverseness and were appropriated funds claimed that he necessary vigor with the pursued will be specific of a consti in violation being spent chal- the constitutional to assure at power. Id. limitation on tutional traditional- made a form in lenge will 175, 94 S.Ct. 2940. judicial reso- capable of ly thought to be unwilling to equally has been The Court lution. extending state Flast as means see S.Ct. 1942. 88 above, the noted standing. As taxpayer Flast Standing after Cases C. in Dore suggested previously Court had tested years, litigants next few Over taxpay on federal mus that the limitations attempting to use by boundaries Flasfs applicable standing equally were er challenge different standing to taxpayer actions.6 challenging state taxpayers state actions. governmental of federal kinds question of on the again focused Court instance, Valley Forge Cuno, in Christian For standing in Cuno.7 state Separa Americans United College challenge v. actions sought to taxpayers State, 454 U.S. of Ohio Church Toledo and the State city tion (1982), plaintiffs Jeeps L.Ed.2d in 700 encourage manufacture Es area, offer through as violative sought specifically the Toledo of federal for new transfer tax benefits Clause the and state ing local tablishment Health, alleged Department property investment. insti credits under these to a sectarian of tax granting and Welfare Education however, the Commerce Court, held that the circumstances violated tution. addressing parties’ their standing to maintain lacked Clause. Without reached the the Sixth Circuit standing, limited “Flast because action and held claims ‘only plaintiffs’ [at] merits challenges directed ” The Su invalid. tax credit under power’ congressional exercises review, request granted Valley preme Court Power. Spending Taxing “address whether parties ed that the also 479, 102 (quot S.Ct. 752 Forge, 454 U.S. way common with Education, indefinite in some 342 U.S. v. In Doremus Board generally.” people L.Ed. 475 S.Ct. Frothingham (quoting stated: Mellon, v. Mel Massachusetts of a what the Court said decided with reiterate [W]e 447, 488, lon, when a state 67 L.Ed. equally true statute as party who invokes "The (1923)). Act is assailed: show, only that power be able to must invalid, court, he has sus- court but that nor this the statute is 7. Neither the district danger immediately of sus- stay, tained or is had the bene- considering the motion injury of its result taining direct some decision. fit of this enforcement, merely that he suffers and not standing to challenge [the] to a federal statute “as equally true tax in litigation.” franchise credit when a state Act is assailed: ‘The [tax- Id. at 1860. payer] must be able to ... show that he has sustained ... injury some direct ... opinion, its Court noted that it merely and not that he suffers in some “an important ques- was asked to decide way in indefinite people common with tion law concerning of constitutional ” generally.’ Id. at Commerce Clause.” 1861. Before however, question, it to that turned it had Doremus, (quoting 433-34, Id. 342 U.S. to “plaintiffs, determine whether the as the 394). 72 S.Ct. parties asserting jurisdiction, now federal Indeed, the Court noted that failure to the burden of establishing [had] carried] against extend the bar general taxpayer (in- standing their under Article III.” Id. standing taxpayers to state challenging ap- omitted). ternal citations propriations made state statutes could issue, In addressing standing raise serious federalism issues: Court reviewed the roots of its Federal courts partic- assume a standing jurisprudence in Frothingham: ular exercise of this state fiscal discre- In rejecting improper a claim that feder- tion in establishing standing; party appropriations al would “increase the seeking jurisdiction rely cannot burden of future taxation and thereby on such “[s]peculative inferences ... to plaintiffs] take property [the without injury connect [his] to the challenged law,” process due the Court observed defendant],” actions of [the Simon [v. taxpayer’s that a federal “interest Kentucky Eastern Rights Org.], Welfare moneys Treasury ... is shared [26, 45, 426 U.S. 96 S.Ct. others; comparatively millions (1976)].... Indeed, L.Ed.2d 450 because indeterminable; minute and and the ef- budgets state frequently contain an ar- taxation, fect upon future pay- ray of tax and spending provisions, any funds, remote, ment out of the so fluctu- number of which may challenged on a uncertain, ating and that no basis is variety bases, affording taxpay- state appeal afforded for an preventive press ers such challenges powers of a court equity.” simply because their tax gives burden (quoting Frothingham, them an interest the state treasury 597). U.S. at 43 S.Ct. The Court interpose the federal courts as then noted that rejecting the “rationale for “ ‘virtually continuing monitors of the federal taxpayer standing applies with un- ” wisdom and soundness’ of state fiscal diminished taxpayers.” force state administration, contrary to the more Cuno, 126 S.Ct. at application 1863. The modest role Article III envisions for fed- principle indicated, to the states was eral courts. See Wright, [Allen v. stated, the Court in Doremus: 737, 760-61, case, In that we noted our earlier hold- (1984)] L.Ed.2d 556 (quoting Laird v. ings that “the interests of a taxpayer in Tatum, 1, 15, moneys of the federal treasury are (1972)). L.Ed.2d 154 indeterminable, remote, too uncertain Cuno, 126 S.Ct. at 1864. and indirect” support standing to

challenge “their expenditure.” Thus, manner of concluded, the Court “we We then what “reiterate[d]” we had said hold that state have no standing in rejecting a federal taxpayer challenge under Article III tax strings attached. ments without by virtue simply decisions spending controlling. cannot be at 1864. difference taxpayers.” status their plaintiffs’ rejected the Court Finally, Found., Religion Inc. v. Freedom from challenge un- their analogize attempts to (7th Cir.2006). Chao, 989, 994 433 F.3d to the Estab- Clause the Commerce der After reit disagreed. alleged Flast. violation Clause lishment standing set the test for erating applica- that the broad believed The Court Flast, at 102- in see 392 U.S. forth “would plaintiffs the urged Flast tion of 1942, plurality the determined 88 S.Ct. applica- its narrow at odds with quite con specific that the difference between own and Flasf s precedent in our tion authorizing the ex enactment gressional feder- transform that it would not promise expenditure of funds and penditure taxpayers’ ‘gener- into forums for al courts general appropriated from funds made ” (quoting Id. at 1865 grievances.’ alized Branch a critical one: the Executive 1942). Flast, at 88 S.Ct. 392 U.S. “congressional link necessary between sup action and constitutional violation Religion Freedom from Hein v. D. in taxpayer standing [wa]s Flast ported Foundation Hein, 2566. The 127 S.Ct. at missing.” explained that the plurality frame- jurisprudential this against It is challenge any spe- Respondents do not must view that we work appropria- or congressional cific action and consider its in Hein decision Court’s tion; to inval- Hein, nor do ask In case. present application any congressional enactment idate challenged part of as uncon- legislatively program created Community Faith Based and President’s expendi- That is because stitutional. as violative program Initiatives pur- not made at issue here were tures Clause. Establishment First Amendment’s Rather, Congress. Act of suant they pos- maintained plaintiffs general appropria- Congress provided challenge the standing to taxpayer sessed to fund its the Executive Branch tions to funds from the federal because program appropria- These activities. day-to-day Executive “general treasury, specifically authorize, direct, expressly not Hein, tions did at S.Ct. appropriations,” Branch expenditures mention A even initiative. used to fund the were Those ex- respondents complain. panel of this court determined divided dis- resulted from executive penditures necessary in- plaintiffs had shown cretion, congressional action. Flast, progeny, its to es- jury under Specifically, taxpayer standing. tablish omitted). (footnote Conse- at 2566 Id. that: majority held that “this plurality concluded quently, the exception’ ‘narrow then, falls outside the difference, case case between this general rule ‘created to the that Flast and Flast and [Bowen on the one hand in standing established Kendrick[, against 108 S.Ct. v.] (quoting at 2568 (1988),] Frothingham.’ on the ” 101 L.Ed.2d 520 2562). Kendrick, at 108 S.Ct. 487 U.S. expenditures in those is that the other respon- expenditures “Because specific congres pursuant cases were expressly au- challenge were not dents while grant programs, sional con- by any specific mandated just thorized or case, statutory program, there is no enactment,” in the the Justices gressional “program” appropriating general lawsuit “respondents’ explained, depart- plurality money to executive-branch some at an congres- not directed exercise of requisite nexus between them status power, sional and thus requisite lacks the challenged and the enactment in order to ‘logical nexus’ between status meet the test articulated in Any- Flast. type ‘and the at- thing enactment interpose less “would the federal “ Hein, tacked.’” at (quot- S.Ct. ‘virtually courts as continuing monitors ” 1942) ing 392 U.S. at the wisdom and soundness’ of state fiscal (additional omitted). citations administration, contrary to the more mod- est role Article III envisions for federal Application E. Cuno, courts.” (quoting We believe that there are guid- several Allen, 3315). ing away principles to take from the cases mind, With principles these we turn to First, just general we have discussed. claim plaintiffs. made rule, articulated first in Frothingham, and case, present Hein, recently reiterated most is that are challenging practice the legislative taxpayers may federal not lodge constitu- prayer implemented as by the Indiana challenges against tional congressional ap- House of Representatives. It is clear from propriations. exception The general the parties’ the stipulations that Indiana’s rule set in Frothingham forth is a narrow practice consists of a Day” “Minister of the Indeed, one: exception only the applies program that involves offering the of a when the taxpayer has a “logi- established prayer by a member of clergy the cal link between taxpayer] [his status and representatives filling to offer the invo type the legislative enactment attacked” only cation when present.” “no cleric [is] as well as “a nexus between that status R.16 at program, 3. The it presently as precise and the nature of the constitutional administered, is not by mandated statute. Flast, infringement alleged.” at U.S. origin practice The of the is House Rule Second, 88 S.Ct. 1942. the nexus 10.2, and that merely rule provides that a plaintiffs between the taxpayer status and prayer or given invocation be meeting each the enactment must be a direct day before the House conducts busi one. plurality of the Court made ness. The manner in which program the clear in only Hein that “expenditures currently administered is a matter of pursuant made to an express congressional tradition, implemented at the dis specific mandate and a congressional ap- cretion of Speaker. Although there is propriation” met the require- first nexus some minimal amount of expended funds ment; plurality rejected plaintiffs’ in the administration program, claim any “expenditure government plaintiffs pointed have not any specific funds in violation of the Establishment appropriation of funds the legislature to Clause” requirement. would meet this See implement the program. Furthermore, Hein, (internal at S.Ct. quotation other than the costs of web-casting, omitted). marks In the context of an al- only costs postage incurred are for the leged violation, Establishment Clause sending thank-you letters pictures. requirement nexus is not met absent “the These only costs not are unrelated to the very spen[ding]’ ‘extraction] and of ‘tax content prayers offered, they are money Cuno, in aid of religion.” unnecessary for the administration of the Flast, at 1865 (quoting at “Minister of the Day” program. 1942). Finally, S.Ct. taxpayers held to the standing requirements same as circumstances, Under these simply we taxpayers. They must establish cannot conclude that require- nexus Hein, leave Flast as we found it.” it. have We explained as ments of not tied plaintiffs Because this court’s initial deter- met. 2571-72. been (and to the House’s as mination was based on Flast their status law case regu- practice Flast), allegedly unconstitutional interpreting plaintiffs urge They prayer. offering a sectarian larly Hein stay panel’s undisturbed the leaves has legislature have not shown agree. cannot determination. We tax dollars for the from them extracted Although plurality Court’s of a implementation establishment opinion effecting characterized its no that violates Establishment program in its view of the law of change which cover appropriations, Clause. decision, especially standing, plurality’s program, “did incidental costs of the Cuno, significant- when read with clarified direct, authorize, or even expressly ly taxpayer standing the law of for the Hein, expenditures,” mention the instance, For our lower federal courts. “Minister of the attendant taxpayer standing treatment of at the time Instead, al- Day” program. “ motion for government Speaker’s we addressed only ‘expenditure lege the Establishment stay funds in violation of articulated a more malleable vision ” Clause,’ reject- explicitly which the Court Flast than the one articulated plu- in Hein. Id. at 2565 inadequate ed as treatment, Hein. rality in In our earlier we omitted).8 (internal citations that, parties accept “Both in order stated: standing taxpayer, person as a a to have by specific direction Despite the lack of challenged pro- that the must demonstrate to establish the Minis- legislature the state by monies raised gram supported Day and the lack of program ter through taxes and that the use of those the dedicated to specific appropriations specific constitutional monies exceeds maintain that Hein program, plaintiffs the funds, public such limitation on the use to reconsider require does not this court prohibition as the First Amendment’s stay pan- preliminary the conclusion an establishment of reli- respecting laws standing to plaintiffs possessed el that the Hein, Hinrichs, 440 F.3d at 396. gion.” plaintiffs note maintain this action. however, that of funds explains the “use” Court Hein did not that the program, unconstitutional allegedly for the in Flast: “We do holding its disturb more, to meet the without is not sufficient also do not overrule extend but we authorize, expressly di- propriations requisite did not con- 8. The dissent asserts rect, allegedly expenditures unconstitution- mention the nection between or even expenditure practice and the of funds is complain”). plaintiffs al respondents which adoption 10.2; indeed, the initial established they ac- do not Rule conjunction with the House's Rule 10.2 constitutionality knowledge of some form budget, passing a which in- later action in Instead, present legislative prayer. it is the general opera- appropriations for the cluded day, employing a minister of the practice of believe these of the House. We do not tions prayers, resulting that and the sectarian satisfy requirement, forth actions set two However, plaintiffs enjoin. as demon- seek to Hein, challenged expenditures that above, specific appropria- there is no strated by “expressly or mandated” authorized Minister of Rule 10.2 or for the tion either for congressional enactment.” Hein v. "specific appropria- program. such an Day Absent - Foundation, Inc., Religion Freedom from tion, necessary link between 2553, 2568, U.S.-, 127 168 L.Ed.2d allegedly uncon- expenditure for the and the (2007); (finding see also id. practice not been established. has stitutional missing ap- requisite "[t]hese because nexus Conclusion Instead, it required Flast. is the nexus appropriation alleg- of those funds for the reasons, foregoing For the we reverse edly purpose provides unconstitutional judgment, district court’s and we re- expenditure link between mand the case to the court with district standing.9 necessary support jurisdic- instructions to dismiss for want of Speaker may tion. The recover his costs the time and are well aware of ener- We in this court. parties and the district court gy on the merits of this mat- expended REVERSED AND REMANDED WITH INSTRUC- However, dispute is not a “[i]f ter. TIONS controversy,

proper case or courts WOOD, Judge, dissenting. Circuit it, deciding expound- have no business ing doing the law in the course so.” crowning One of the achievements of Cuno, Experiment 126 S.Ct. at 1860-61. the American has been the plaintiffs argue 9. The that "this "contemplatefd] also 1216. The resolution consistently acknowledged has private also that Flast w[ould] donations be raised to cover gives taxpayer standing challenge any renovating maintaining cost of type expenditures of state or local 'tax dollar room.” Id. at 1217. allegedly contribute to Establishment appeal, On our discussion of ” Appel violations. v. Cohen.' Clause Flast brief: Supp. (quoting lees' Br. at 5 Gonzales The district court held and neither of the Indiana, Township County, North Lake parties disputed has that Van Zandt has However, (7th Cir.1993)). F.3d standing to sue since he is an Illinois tax acknowledge, as the case on payer proposed prayer and since the room Gonzales, proposition, rest this arguably place economic burdens of standing municipal taxpayers concerns the various sorts on the State of Illinois and its challenge municipal expenditures. As al taxpayers. Thompson, Van Zandt v. noted, ready pronouncements since its first (N.D.Ill.1986) F.Supp. (citing taxpayer standing, Court has Chambers, 4, Marsh v. 463 U.S. 786 n. distinguished standing require between the (1983)). 103 S.Ct. 77 L.Ed.2d 1019 taxpayers, and ments for federal state on the Similarly, the district court that held hand, municipal taxpayers one and on the Foundation, Inc.,” Religion "Freedom from exception, other. With one the other cases not-for-profit corporation, a Wisconsin has by plain from this circuit which are cited representative associational aas (1) categories: tiffs fall into one two state taxpayers. its members who are Illinois Id. taxpayer challenges specific legisla to state appear at 588 n. 4. These determinations to (which appropriations tive would meet the challenged by be correct and have not been DaimlerChrysler Corp. standards under Cuno, v. any parties. accept We therefore them. L.Ed.2d 589 Hein Freedom omitted). (parallel citations After Cuno Foundation, Inc.,-U.S.-, Religion from Hein, amorphous such burdens on state (2007)), 168 L.Ed.2d 424 taxpayers would not meet Flast’s narrow ex- (2) challenges municipal taxpayer to munici Indeed, ception taxpayer standing. to (which pal subject actions are not to the same any resolution at issue did not authorize ex- stringent standing requirements as state and funds, penditure contemplate nor did it taxpayers seeking to state actions, use of state taxes for the renovation and respectively). and federal Consequently, maintenance of the room. The one case that further com- warrants district court’s assessment that the room Thompson, ment is Van Zandt v. 839 F.2d (7th Zandt, "place Cir.1988). economic burdens of various In Van the Illi- merely Representatives passed spec- sorts” on the state nois House of a reso- support provided lution "which ulative and could not for the conversion of concrete hearing injury Capitol taxpayers necessary room in the Illinois State Building prayer ... support standing. into room.” to protection person’s right of each free harmony people in which of dif relative joined togeth ly religion to exercise his or her and the fering religious beliefs A society. civil prohibition against to create a common the establishment of a er today the world around the rest of glance religion. many reminder other

offers a sad Another characteristic of which Ameri- lucky. Reli have not been so countries rightly proud is the tradition of cans Jews and Muslims is gious strife between individualism, in the sense of selfish- longstanding component of the principal ness, but in the sense of each citizen’s Israelis and Palestini hostility between willingness to shoulder whatever burdens ans; and the between the Sunni violence responsi- need to be assumed and to take bloody of Islam has taken Shi‘a sects herself, bility family, her her communi- Northern Ire Iraq years; in recent toll ty, greater and the world around her. Protes land was torn violence between classically Americans do not sit back and decades. The tants and Catholics for problem. wait for else to solve a someone Religious International Free most recent may help explain why This the tradition Bureau De Report issued dom private attorney general arose in the Rights Human and Labor of the mocracy, United States and continues be such (“2007 Religious Department State important part public of American law. It major Report”) identifies five Freedom help explain why also there has right reli categories of abuse of the always healthy skepticism been a about subtle, freedom, blatant, some gious some “government.” gov- Those entrusted with parts all extant in some of the world. power might ernmental exceed their man- Execu Religious Report, Freedom date, why, Madison as James ¶ 4, http://www. Summary tive available explained (among Federalist No. 51 oth- (last state.gov/g/drl/rls/irfi2007/90080.htm the Framers of the Constitution places), er 2007). goes on report visited Oct. system chose a of mutual checks and bal- (1) authori single out totalitarian and (James The Federalist No. 51 ances. control regimes tarian that seek to reli ed.2001). Madison) (Gideon Speaking (2) expression; states gious thought Leg- dangers about the from an unchecked hostility minority or display toward No. Madi- islative Branch in Federalist (3) fail non-approved religions; states that Pennsylvania ap- “it son noted to address either societal discrimination had been pear[ed] the constitution against religious societal abuses in a by legislature flagrantly violated (4) that discriminato groups; states enact instances.” Id. No. variety important ry implement policies that legislation or Madison). (James 48, at 259 Madison’s majority disadvantage religions favor majority by a be united a concern that “[i]f (5) minority that religions; and states interest, the minori- rights common freedom, religious respect otherwise insecure,” is ty id. No. will be against religions that certain discriminate thought that well known. Madison himself by identifying dangerous them as cults ¶¶ problem largely be solved this Although we do have sects. 5-9. groups. shifting coalitions of interest in religious our differences the United however, political parties, rise of States, With the by our they are far outnumbered fluidly have not shifted as inside coalitions understanding commonality. In no may as the Framers bodies part, accomplishment this result small An alternative thought they have would. balance drawn in the First of the delicate check, also built into the Consti- between which was Amendment Constitution tution, the Madisonian 20 L.Ed.2d 947 supplemented good has law. As of the Judicial Branch to below, idea—the use explain I the differences between in actions either rein unconstitutional Religion put our case and Freedom From Branch or the Executive Legislative (narrow squarely ours within the confines Branch. be) though they may standing doc stressed, Court has

As recognized trine in Flast. I would find perform Branch can Judicial function that the plaintiffs here have seeking to only person when the invoke proceed and would sue to the merits of the presented courts has the aid of the “Case case. in Controversy” the sense that Article phrase. III of the Constitution uses I Article III aspect One of this command is plaintiff “standing must case, majority This explained, as the has negatively, standing lacking sue.” Put concerns the chaplains use of in Indiana’s though when “even the claim be cor (“the House”). Representatives House of litigant advancing proper rect the it is not system rotating The House uses a chap ly judicial situated to be entitled its lains, single rather than a official who is A. Wright, determination.” 13 Charles appointed to serve in that capacity for a Miller, Arthur H. Cooper, R. Edward Fed (For stated term. a discussion of the dif § eral Practice & Procedure 3531 at 338- ference between the types, Jeremy two see (2d ed.1984). recently As this court Comment, Mallory, G. “An Gates, noted in Winkler v. 481 F.3d 977 Officer of (7th Him, Nothing Which Chooses Cir.2007), “there are three elements of fact, in More”: standing: injury Article III a caus How Should Marsh v. Chambers injury al connection between the and the Apply Rotating Chaplains?, 73 U. Chi.L.Rev. conduct, likely defendant’s redress- (2006).) In the inter 1426-30 ability through favorable decision.” Id. avoiding any est of dispute way about the Lujan citing v. Wild Defenders of chaplain which the of the Indiana House 555, 560-61, life, functions, I take most of the discussion (1992). question 119 L.Ed.2d 351 that follows from the brief filed on behalf case before us is whether the Speaker of the House before this judicial entitled to determination of court. Speaker begins by noting question whether certain rules and legislative authority in Indiana is vest practices legislature of Indiana’s —rules Assembly, ed the General which is a injure capac assert them in their body bicameral consisting of the Senate ity as the Estab —violate TV, § the House. Ind. Const. art. lishment Clause of the First Amendment. members; The House has 100 those mem My colleagues, relying plurality on the Speaker, bers elect a who authority has opinion by Justice Alito in the case of Hein IV, over the House. Ind. art. Const. Foundation, Religion Freedom From 10; 2-2.1-1-7; § § Ind.Code Rules of the — U.S.-, 168 L.Ed.2d (“the Rules”), Representatives House of conclude that the answer is no. Part III.B Speaker 19-20 and Part I. The view, In my overlooking are crucial presides Speak over the House from the points of the expressed rationale in the House; er’s stand at the front of the under plurality opinion, as well as the fact that Rules, person may Speak seven no enter Justices out of nine still consider Cohen, Flast v. er’s stand without the Speaker’s invitation. you con- ask that strive for an ecumenical Rules outlines the II of the Part House; members, it in- prayer as our staff and con- of business before duct con- matters as the time of such stituents come from different faith back- cludes deadlines, votes quorum, and vening, grounds. you your Thank for consider- spells Rule 10 out necessary for action. ation. perti- order of business.

the usual notes, majority legislature As the has follows: part, it reads as nent appropriated specific authorized and reve the House to order Calling 10.1 support prayer. nues to The amounts Prayer 10.2 tiny, compared are to the size of Indiana’s Pledge Allegiance 10.3 budget recent annual of some billion in $25 10.4 Roll call expenditures. http://www.in.gov/sba/ See (last budget/ 2007_budget/as_passed/pdfs quorum that a is point, assuming At that 2007). Sept. visited The form letter gets underway, day’s business present, per mailing; photo cost at the time $0.54 committees, introduction reports from provided public expense are at a graphs bills, and other matters. of resolutions each; the photographs cost of $0.68 The focus in this case See Rules 10.4-10.8. along thank-you with a letter are sent to 10.2, prayer. which calls for a is on Rule cleric at a of about afterward cost explains prayer is Speaker a in per mailing, for total of $1.60 $2.82 by religious a cleric who generally offered direct costs. The sessions the House for that been invited to the House has at a are broadcast over the Internet cost of present, Repre if a purpose; no cleric hour, minute; a an this $112.85 $1.88 a instead. The prayer sentative will offer Assuming paid by too is for tax revenues. Repre clerics or Speaker authorizes the typical that a invocation is about 3 minutes Speaker’s stand sentatives to ascend day length, per legislative another $5.64 Invocations of pronounce prayer. might practice, attributed to this for a type have been offered (Indiana expenditure per prayer. total of $8.46 the 21st years. for became 3, 1818; presumably December tran- During the 2005 session has Speaker say means to that there for 45 out of the 53 scripts prepared were a time since statehood when never been prayers person that were offered. prayers http:// were not offered. See such religious giving prayer, and his or her www.statelib.lib.in.us/www/ihb/ affiliation, days. was identified for all 53 (last visited publications/tlstatehood.html prayer of- days, On 41 of those 2007).) Sept. person identified by fered a cleric or other by Repre-

The invited clerics are chosen denomination; prayer one with Christian sentatives, a “Minister of the complete imam, who rabbi, by one was offered Day” indicating person form when the by legisla- nine lay person, one re- available to serve. Once the form is In 29 out of the 45 invocations tors. ceived, After the actual date is scheduled. available, the transcripts person prayer, is selected to offer the he cleric prayer offered the the name explicitly a brief letter. or she will Jesus, Christ, Savior, form or the Son receive details, passing along logistical from Apart (sometimes using more than one of those following guidance: letter offers the words). number, In a small the officiant personally praying notes that he or she is prayer The invocation is to be a short Christ, in the name of help in the mat- in the Jesus asking guidance implies majority, the officiant states ters that come before the members. We (or thereof) lack highlight implications name is offered Jesus’s prayer Nothing majority The record of their decision. in the by everyone assembled. only I of which offer examples, filled with opinion ruling should be understood as 28, 2005, February Rev. Raders few. On way one or the other on the merits of the by saying, among prayer his opened dorf procedures. House’s someone Should you in word or do things, other “Whatever along majority’s come who meets the con- Jesus, deed, in the name of Lord do all cept standing, question whether the through Him to thanks God giving may sponsor prayers at State ex- 5, 2005, Rev. Brown April Father.” On pense everyone in the urging chamber thanks to the Father “for expressed first Christianity, declaring adhere to or edicts Christ,” and our and Savior Jesus Lord room a or musical place,” “hallowed invitation, then, returned Speaker’s at the exhortations, revival-style, to “talk with Pledge after the Speaker’s stand Jesus,” open is an one. Jesus,” Talk sang a Little “Just stood, clapped, and legislators while some II out of the sang along, and others walked 29, 2005, protest. April House in On Rev. earlier, I Supreme As noted Court gos “As a minister of the Descesario said recognized has three elements of Article my right I to declare this pel, exercise standing: injury-in-fact, III a causal con- I invite into this place. room hallowed injury nection between the and the defen- room, day, into proceedings into the conduct, likely redressability dant’s today, that made [sic] the decisions will through Lujan, a favorable decision. mighty Holy Spirit each person, U.S. at 112 S.Ct. 2130. Whether Holy Spirit, give these here the mind God. taxpayer standing the restrictions on de- of Christ.... I ask this in the name of rive from one or more of these basic Arti- Jesus Christ.” III if they cle constraints or stem from a practices These were the to which unclear, rule of self-restraint has been see plaintiffs, objected. all taxpayers, Indiana Winkler, (majority opin- 481 F.3d at 980 suit, They claiming filed the present ion); J., (Sykes, id. at dissenting). legislature appropriating the Indiana was majori- Because no one spoke Justice spending support religion monies to ty Freedom From prayer, prac- and sectarian and that this Religion, question may still be debata- tice violated Establishment Clause. Nonetheless, ble. it fair both because district court found had assume that Justices Scalia and Thomas Cohen, sue, standing under Flast agree with the three for whom Jus- Speaker particular prayers wrote, tice Alito and because Justice Alito permitting the line crossed between squarely rejec- relied on Article III in his permissible prohibited invocation and reli- case, tion of standing I gious practice first established in Marsh v. argument assume for the sake of that we Chambers, dealing with a restriction (1983). injunc- It L.Ed.2d 1019 issued grounded that is in the Constitution. tion, appealed and the defendants under 28 1292(a)(1). Although § it is a bit anachronistic to su My colleagues U.S.C. perimpose Lujan analysis on earlier concluded that this lawsuit must be cut off cases, standing. taxpayer standing at the I it is nonetheless threshold issue While do agree point, purposes understanding with them on this useful for how turning question before to that I those wish to decisions contribute to the modern taxing spending pow- at all of limitation on the and one looks standing. law of When er, taxpayers have “a clear in line, and stake” including to and up in this the cases that assuring Congress does not breach that Religion, appears it Freedom From injury-in-fact those limits. Id. The that in un lacking that is the crucial element fact that taxpayer suffers is not the he injury-in-fact. is taxpayer suits successful taxes; pay or she must it is the fact that in Froth language Court’s being spent are “extracted those taxes and Mellon, 447, v. 262 U.S. 43 S.Ct. ingham specific pro- in violation of constitutional (1923), which turned 67 L.Ed. 1078 against tections such abuses of challenge away taxpayer’s a effort characterized, injury power.” So is beyond Maternity Act of 1921 as Con both caused the constitutional violation powers I and an affront gress’s Article eminently and it all is redressable: Amendment reserved the states’ Tenth enjoin court needs to do is to the unconsti- wrote powers, typical. is There Court expenditure, tutional and then leave it to single that the interest of a legislature to decide whether to use moneys Treasury partly in the — other, constitutional, money ways in partly and from realized from taxation to reduce taxes. with millions of other sources—is shared object Although might some others; and in- comparatively minute Scalia, vagueness injury of this —Justice determinable; fu- upon and the effect one, exactly argument made in taxation, any payment out of ture Religion, Freedom From see S.Ct. at funds, remote, fluctuating uncer- so and recognized 2575-77—the has Court tain, for an that no basis is afforded in injuries specific no more than this other powers appeal preventive Thus, for in Sierra example, contexts. Club equity. court of Morton, 405 U.S. 92 S.Ct. 597. Such an attenuat- 43 S.Ct. (1972), L.Ed.2d 636 the Court held injury inexorably to the unavailabili- ed led Sequoia users of National Park would have remedy Frothingham in ty useful had the construction itself. resort, only ski based elaborate took a closer look at In the Court injury they suffer from the aesthetic rejected why taxpayer standing had been scenery, on the natural the adverse effects It Frothingham. in concluded objects, and wildlife historic in the latter case “lacked stand- park. 405 U.S. her constitutional attack was ing because Mathews, Similarly, in Heckler v. 465 U.S. Congress, allegation not based on an 1387, 79 L.Ed.2d 646 1921, had enacting Maternity Act of whether regardless held that Court tax- specific upon limitation its breached monetary might tangible recover plaintiff spending power.” ing challenging a suit unconstitu- relief from essence, con- 88 S.Ct. 1942. discrimination, by it- tional “discrimination tinued, trying she was “to assert self, and stereo- by perpetuating archaic legislative preroga- interest in their by stigmatizing States’ members typic notions taxpayer’s innately interest groups tives and not inferi- of the disfavored taxing spending worthy participants being free of or and therefore less community constitutional lim- ... can cause specific political contravention of in the taxing injuries per- to those imposed upon Congress’ serious noneconomic itations equal personally denied power.” Id. The Establish- sons who spending Clause, held, solely because of their member- specific such a treatment ment it then 606 739-40, Constitution, group.” conceivably Id. at these harms in a disfavored

ship (internal quotations and might amorphous 104 1387 too for the courts to S.Ct. omitted). Further, Lujan in it citations in standing; find the Establishment an in self, injury complained of was context, however, standing Clause endangered “rate of extinction creased See, DaimlerChrysler e.g., Corp. clear. v. Lujan, 504 U.S. species.” and threatened Cuno, 332, 1854, 1859, 547 126 S.Ct. 563, 112 shortcoming in S.Ct. 2130. The (Commerce (2006) 164 L.Ed.2d 589 plaintiffs did not that case was Clause); Valley Forge v. Americans Unit even, directly, it affected them show how State, Separation ed Church and Kennedy Justice as the concurrence Inc., al., 464, 466, 102 752, et 454 U.S. S.Ct. out, through something as minimal pointed (1982) (art. IV, 3, cl.2); § 70 L.Ed.2d 700 buying plane tickets to as the detriment of Mellon, 447, Frothingham v. 262 U.S. 43 579, disappearing animals. see the (1923) (amends. 597, S.Ct. 67 L.Ed. 1078 J., (Kennedy, concurring); 112 2130 S.Ct. X). Indeed, against V and viewed v. Ameri Japan Whaling see also Assn. backdrop injuries of other in Establish 221, n. Society, can 478 U.S. 231 Cetacean cases, ment plaintiffs Clause here have (1986) 4, 2860, 106 92 L.Ed.2d 166 S.Ct. shown more concrete than damage most: undoubtedly al (“Respondents ... have they enumerated, degree have with some ‘injury in fact’ in that leged a sufficient accuracy, pence” the value of “three watching studying of their whale they pay to support practices of which adversely members will be affected con they complain. DaimlerChrysler, See harvesting.”). tinued whale 1864, quoting S.Ct. at from 392 U.S. uniquely in Establishment Clause which in turn was aesthetic, psychic, volves sort of quoting Writings James Madison 186 intangible injury. injury involved is (G. ed.1901). Hunt harm This is more (with only rarely physical never injuries concrete than arising from a Ten cases, prominent exception it creche, display, holiday Commandments Instead, happens) monetary. so even in graduation prayer, or a all of which are cases where the Court has not balked at staples of Establishment jurispru Clause accepting standing, plaintiffs claim By dence. standards set other Es injuries intangible having more such as: cases, anybody tablishment Clause who predominantly religious purpose arrang (in heard prayers person has one of these ing particular way, McCreary art in a see web) or on the should be able to claim County v. American Liberties Civil Union heard, standing at least to her claim 844, 881, Ky., 545 U.S. S.Ct. eventually whether or not it succeeds. See (2005); passing 162 L.Ed.2d a monu American Civil Liberties v. Union St. work, along path ment see one’s Van Charles, (7th 794 F.2d 274-75 Cir. 677, 694, Orden Perry, v. 545 U.S. 1986) (arguing that Establishment Clause (2005) (Thom 5.Ct. 162 L.Ed.2d 607 standing would exist when a citizen saw a as, J., concurring) (reaching the merits of path creche or had to alter her on the $20 injury; Establishment not Clause sidewalk, when she read about the questioning standing); sending a mes newspaper). injury creche Potential sage disapproval endorsement or of reli before gion, us—in their role as Lynch Donnelly, see constituents, they necessarily are if 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring). expressly even con Were —is they attached against to another clause in the sidered and warned in the letter discussing I Alito’s asking that have been Justice Day, Ministers of sent to plurality opinion reversing the court of ecumenical”; the caution they “strive to be majority, because it appeals, as does inadvertently there to avoid presumably expressed ground was he who the middle from a offending a constituent excluding or Unlike Justices Scalia and on Court. Categoriz background.” faith “different Thomas, time thought who had foreseen, harm as an concrete ing this Flast, Alito, to overrule Justice come give not that does “amorphous burden” joined by the Chief Justice and Justice controversy, case or cognizable to a rise Kennedy, prepared go not to so far. was 7, gives n. insufficient ante at 30 see found a move unneces- plurality The such the harm inherent to the nature of weight in sary, taxpayers because their view the Clause cases. in all Establishment satisfy them did not Flast’s narrow before us, it not evaluating the case before In rule exception Frothingham to the normal dealing all of the cases necessary to review Souter, against taxpayer standing. Justice challenge to either with for himself the other three writing violations or other Clause Establishment dissenters, in noted the Court Daimler- enough It is violations. constitutional Chrysler “ ‘ recently had reaffirmed that the From Reli a closer look at Freedom take “injury” alleged in Establishment carefully plurali to note what the gion and challenges spending’ Clause to federal not hold there. Before ty did and did very spending]” ‘the “extraction] ” so, point agreement I one doing note money” religion.’ “tax in aid of majority princi and me: the between DaimlerChrysler, 126 quoting Religion From announced in Freedom ples why at 1865. The reason the Alito taxpayers apply respect with rule did plurality thought Flast taxpayers to the state equal force apply plaintiffs not in Freedom present plaintiffs in the case. Su Religion simple: before us From actions; DaimlerChrysler, challenging legislative held in not preme Court so were instead, they attacking in Executive which was a case were 126 S.Ct. at religion in expenditures support Branch that certain taxpayers claimed which state (in particular, the White House Office by law violated tax benefits afforded Ohio Community Initiatives Faith-Based and The Court con the Commerce Clause. of the Presi- within the Executive Office that it could not reach the substan cluded dent, in Executive Centers and related issue, Clause because tive Commerce departments). agencies other federal in standing to sue lacked plurality took the While the dissenters however, holding, In federal court. so distinction, arguing that task for that the Estab distinguished between no reason to distin- Branch has Judicial challenge per that Flast lishment Clause actions of the Executive guish between chal mitted and the Commerce Clause Legislative Branch and those trying press: were lenge Branch, prevailing not theirs was plaintiffs have under the rights “Whatever voice. Clause, fundamentally they are Commerce right not to ‘contribute three contains numerous plurality opinion unlike fact support importance one pence [reli ... for the references to the ” quot expenditures at issue Flast gious] “[t]he establishment.’ con- express to an pursuant 88 S.Ct. were made ing from congres- a specific mandate and quoting Writings gressional turn James at 2565. appropriation.” sional Madison 186. Court, contrast, challenge go case before see whether this suit adjudication forward to an on the merits. challenge any spe- “[respondents [did] What we find is a to a appropriation; action or congressional cific chaplaincy, by created a House Rule enact the Court to invalidate nor ask [did] Representatives ed Indiana’s House of legislative- enactment or any congressional Speaker. and administered as unconstitutional.” ly program created Indiana House and Senate both enact their Allowing taxpayers to chal- Id. at 2566. IV, pursuant rules to Ind. Const. art. programs lenge general Executive (“Each House, assembled, § 10 when shall would, plurality applied” “as basis officers, choose its own the President of feared, nexus between the sta- stretch the elections, excepted; judge the Senate beyond program tus as and the qualifications, and returns of its own mem breaking point. Justice Alito contin- bers; determine its rules proceeding, ued, every legal cannot be that chal- “[i]t upon adjournment. and sit its own But discretionary Branch lenge to a Executive shall, neither House without the consent of constitutionality implicates action other, adjourn for more than three underlying congressional appropria- days, any place nor to other than that in tion.” Id. at 2567-68. He concluded this which it sitting.”) (emphasis add part opinion as follows: ed). appear any There does not to be expenditures respon- Because specific enabling pursuant additional act expressly were not au- dents adopted begin which the rules are at the by any specific thorized or mandated ning of each session. This seems close to enactment, congressional respondents’ practice Senate, of the U.S. which at an lawsuit is not directed exercise of standing maintains than rules rather rea congressional power, Valley Forge, see dopting beginning them at the of each and thus S.Ct. (“The session. See Sen. Rule V.2 rules of requisite “logical lacks the nexus” be- the Senate shall continue from one Con type tween status “and the ”). gress to Congress.... the next legislative enactment attacked.” Under Freedom it Religion, From 1942. 392 U.S. rules, necessary to situate these Finally, rejected Id. at 2568. Justice Alito House in particular, Rule 10.2 somewhere “parade respondents of horribles” that in the govern broader scheme of Indiana’s discretionary feared occur if Execu- analysis ment. In the final they necessari expenditures tive Branch were outside the acts, ly legislative acts, must be executive reach “In taxpayer litigation. the un- something sufficiently like one of those likely any [overtly event that of these reli- two that proceed standing we can with the gious] place, Congress actions did take analysis. (They certainly judicial are not quickly step could in.” Id. at 2571. nature, why which is I disregard that possibility.) This is not the question usual Ill up, comes in the administrative law taxpayer standing, Given the fact that context, respect to legislative rules. Religion, after Freedom From turns on Instead, grappled courts have with wheth claiming whether the are that a challenges er type to this of internal rule “legislatively program” created is unconsti- present nonjusticiable political questions tutional because it violates the Establish- for the reason that there is an explicit Clause, ment specifical- we must look more textual commitment to each house to set ly I, at what our plaintiffs attempting § to its own rules. See U.S. Const. art. But, tion, however, IV, § does not defeat 2; art. cl. Ind. Const. sue; why it a different reason qualification presents there is a

interestingly, case.) adjudicate for cases question might doctrine court political “transgress! rules event, key ] the internal argument which misses the issue limits,” textual Nixon Unit identifiable animating Religion: Freedom From Jus- States, 224, 238, 113 S.Ct. 506 U.S. ed rationale founded on the tice Alito’s (1993). Nixon, in Under 122 L.Ed.2d only expenditure fact was not way to constitutional text give ternal rules discretionary steps executive but re- —two generally are otherwise unreviewable. any legislative moved from action. The 732; Marshall majority argument case bases its cf. our Clark, 649, 12 Field & Co. v. fact that there is line item specific no (1892) (holding that an 36 L.Ed. 294 Day reading “Chaplain—Minister conclusive evidence of its enrolled bill is Program” budget. begs in the But that process validity; refusing to evaluate only question. budget is not the point). which it reached or rules act before us. There is also question: same if a we are back to the So 10.2, specifically House Rule calls rule violates the Establishment prayer and the is concrete- prayer, for the Clause, an tex which looks like identifiable by ly supported appropriations lawmaking authority, limit on tual in Assembly makes for the House General through authority incorporation being Far from twice-re- budget. Amendment, Fourteenth is it the by the action, was the legislative moved from a as enactment that would legislative kind of the chal- Religion, case in Freedom From support taxpayer standing? by the lenge before us is ratified twice anywhere indication that a There is no the second legislature, once as rule and anything Rule 10.2 is other rule like House unquestionably It budget. time in the Indeed, the Indiana legislative. than legislative act. powers courts have made it clear Prayer different from The House is thus Branch Legislative the two houses of its of at in Doremus v. readings the Bible issue nature; in solely legislative themselves are Hawthorne, 429, Ed. 342 U.S. Board judicial nor neither the executive (1952) 394, 475 case 96 L.Ed. —a government may interfere branches thus pre-dated in Flast and that event See, e.g., them. ex rel.

with State Wheeler qualified by the later deci- may have been Court, 296, Ind. Shelby Circuit readings from the Old Although sion. rehearing 267 Ind. N.E.2d teach- public school Testament with (1977); 265, rel. N.E.2d 933 State ex day begin the school were ers were to Court, v. Dekalb Circuit 248 Ind. Batchelet statute, they Jersey a New required (1967); rel. 229 N.E.2d 798 State ex under the broader umbrel- were conducted Reeves, 126, 95 N.E.2d Acker v. 229 Ind. The program. school la of the state’s (1951). majority and the Both the angle to the “pocketbook” saw no Court curiae, States, argue as amicus United case, only at proper it is to characterize the rules com- Id. It then religious “a difference.” non-legislative because address appellants established matter, “[i]f mented that legislative rather than a internal tax- injury necessary to a requisite special legislature. (Indirectly, public act of the it controversy, would payer’s case majority and amicus are re- perhaps, the inducement that their dominant argument. matter turning political question to the merce- religious more than action was possible political ques- of a The existence majority’s approach disregards 72 S.Ct. 394. The nary.” Id. also special place in the problem taxpayer-plaintiffs chaplain- for the real have in Doremus, therefore, Supreme cies held Court’s proof was a failure of juris- Establishment Clause and standing consequence; plaintiffs any pocketbook prudence. Marsh v. Chambers was decid- here, contrast, taken pains spell in in long ed after both Doremus and implications out the financial case, Flast were on the books. reiterate, Prayer. To there is a line item Court considered a prac- Expenses,” for “House doubtless the legislature opening tice of the Nebraska appropriation accounts into which that day each legislative prayer by with a put pay are the ones drawn down to chaplain paid the state. 463 Day program. the Minister of Flast plaintiff, 103 S.Ct. 3330. The Ernest requires a nexus between status Chambers, capacity sued both his as a fisc) (paying type legis- into the and the member of the Nebraska legislature and (the budget lative action enacted item for capacity his as a of Nebraska. Expenses,” “House from which these ex- noted that the court of made, 10.2, penditures are and Rule considered, appeals had among other expenditures furtherance of which these things, question standing, id. at made). directly but it moved majority require litigants done, something it could not have merits — directly money through trace the state’s given jurisdictional nature of an Article accounts, surely which is an excessive re- challenge, III it thought had there quirement preliminary for a matter like problem was a with standing. On the standing. reading This of Freedom From merits, the problem Court found no Religion effectively adopt would Justice chaplaincy that adopted. Nebraska had concurring opinion Scalia’s for himself and It noted in passing chaplain that the had “ advocating Justice overruling Thomas prayers characterized his as ‘nonsectari- an,’ in contravention of Christian,’ the rule ‘Judeo and with ‘elements ” States, Marks United 97 of the American religion.’ civil Id. at 793 (1977), n. 51 L.Ed.2d 260 103 S.Ct. 3330. It also noted that “[ajlthough prayers held that a some of his earlier fragmented Court de- “[w]hen Christian, were explicitly often chap- cides a single [the case and no rationale ex- removed all lain] references to Christ after plaining enjoys the result the assent of five a complaint from a Jewish Justices, legislator.” holding ‘the of the Court These, course, judgments. are merits position viewed as that taken those judgments Members who concurred I do not rule out possibility grounds....”’ on the narrowest prayers some or all of the offered before (citation omitted). 97 S.Ct. 990 It might similarly the Indiana House pass impossible bring become a tax- muster under Unfortunately, Marsh. payer suit anything short of an uni- however, we are never to find out. Under maginably stupid or insensitive majority’s approach, even if the Speak- perhaps a law announcing that er decides to working way start his action— Indiana is a Christian in any state —which through Anglican Book of Common event unlikely would be to inflict specific Prayer day by day, notwithstanding the enough person harm on one Jewish, Muslim, presence Hindu, allow Bud- him or particular dhist, her to sue for more staff, legislators, other and con- injuries. stituents, nothing can be done to enforce majority society incorporated of each the Establishment Clause. command of the House is majority purposes. for those long as As Christian, predict it is also reasonable 401, 1810 938 at *4. This case 6 Mass. WL will never take action the House itself long arose before the enactment of the practice. to curb such Amendment, obviously, and Fourteenth I see problems from all the other Apart long thus before the Establishment Clause outcome, incon striking it is how as a direct restraint on state law. operated history the Estab it with the sistent Furthermore, Massachusetts itself disman leading A casebook on Clause. lishment religion tled its established 1833. See type of “estab subject summarized the al., Religion et and the Consti McConnell that was known religion” lishment of tution at 35. The element of using taxes including as of the Constitution Framers efforts, however, support religious (1) governmental features: prominent four a clear feature of the Massachusetts was person church doctrine and control over it persisted. establishment while (2) faiths; nel; of alternative suppression (3) the estab political connections between Philip Hamburger provides Professor lay government; and church and the lished insight further into evils Es- (4) sup financial attendance and compelled designed tablishment Clause was to ad- church. Michael port for the established dress: McConnell, Garvey, and John H.

W. eighteenth-century America late Berg, Religion and the Consti Thomas C. the dissenters from the established 2002). To illustrate tution 21-23 (Aspen gov- on civil sought churches limitations per of state establishments the sort arguments and did so in ernment written, sisted after the Constitution recognizable patterns. conformed to of Barnes v. presents the case the book had The states with establishments once Falmouth, First Parish in 6 Mass. imposing penalties on dis- passed laws with the which dealt 1810 WL typically enacted senters but now more public school teacher question whether only privileges for their established de- Christianity a sect of differ affiliated with notably, for the salaries nominations — majority in his area ent from that of the clergy. Against established these estab- major paid taxes over to the could recover dissenters religion lishments of most case, In the court ity rejecting church. his sought only penal- a freedom from say: had this (whether in terms of the “freedom ties conscience, on Having liberty of secured reli- or the “free exercise of worship” of opinion and wor- subject religious guarantees against the gion”) but also man, ship, every whether Protestant government sala- unequal distribution Jew, Mahometan, Catholic, Pagan, account of and other benefits on ries for the provides the constitution then in religious differences beliefs. Some max- teaching precepts public dissenters even demanded assurances religion, of Protestant Chris- ims any civil law there would not be people. all And for this tians to religion. As a taking “cognizance” of right it made the and the purpose result, the American constitutions societies, religious duty corporate of all to accommodate the anti- were drafted support public Protestant to elect and demands of dissenters establishment religion, morality; piety, teacher of religious liberty terns guaranteed support and the election and government specif- these limitations on exclusively on the will depend teacher — day respectfully in court. I ing discrimination civil them ically, limits on subject matter of civil dissent. and on the laws

laws. Separation Church

Phillip Hamburger, 11-12

and State 2002).

(Harvard University Madison thought who

agreed with the dissenters the state should not establish a

religion; indeed he have favored between “mat- separation

more absolute Society.” Religion” ters of and “Civil Toby DIGRUGILLIERS, drafting Id. at 105. it came to When Plaintiff-Appellant, however, Bill he Rights, settled language antiestablishment similar to finally adopted. that which was Id. This CONSOLIDATED CITY OF suggests that the Establishment Clause INDIANAPOLIS, al., et by religious

was the result of efforts Defendants-Appellees. protect felt dissenters who the need themselves from the dominant estab- No. 07-1358. managed that had

lished sects secure Appeals, States Court of United various benefits that could be conferred Circuit. Seventh state, only by including access to the public fisc. Argued Sept. 2007. view, my the taxpayer-plaintiffs be- Decided Oct. alleged enough

fore have us win the right present their Prayer judicial before a forum. act,

They challenging

they in- alleged pocketbook concrete

juries. ruling Given both the in Marsh qualifications

and the on that ruling, present

issue wish to is a serious one.

They argue, essence, preferential Speaker’s

access to the stand adher-

ents to the faith exactly Christian problem

kind of the First Amend-

ment’s Establishment sup- Clause was

posed remedy. simple Were this a Es- they

tablishment Clause case in which

complained hearing prayers about

they past walked the door work, way

Chamber on their usual

may very pro- well have been entitled to majority

ceed. The overextends the com- deny-

mand of Freedom Religion From

Case Details

Case Name: Hinrichs v. Speaker of House of Representatives of the Indiana General Assembly

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Oct 30, 2007

Citation: 506 F.3d 584

Docket Number: 05-4604, 05-4781

Court Abbreviation: 7th Cir.