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Wednesday, March 01, 2006

Ind. Decisions - 7th Circuit denies stay of legislative prayer ruling [Updated]

Mike Smith of the AP is reporting, via the Fort Wayne Journal Gazette:

INDIANAPOLIS - A federal appeals court on Wednesday refused to temporarily lift a judge's order banning prayers during Indiana House proceedings from mentioning Jesus Christ or endorsing any particular religion.

The 7th U.S. Circuit Court of Appeals denied a request by House Speaker Brian Bosma that an injunction against such practices in the chamber be set aside until Bosma's appeal could be further litigated.

The appeals court said the case involved the internal proceedings of a legislative body and raised important federalism concerns and deserved additional review. [ILB: See Update 3 at the end of this entry]

But the ruling said Bosma had not met a legal burden to put an order by U.S. District Judge David Hamilton on hold until the appeal could be heard. Bosma has an April 10 deadline to file a full appeals brief.

Here is the opinion. It is 2-1 for denial, with the majority opinion written by Judge Ripple, with Judge Wood concurring. The Court found (1) "the Speaker is unable to show a substantial likelihood of success on the merits of his standing argument", (2) re the establishment clause:
In our initial reading of the case law, we find little to encourage the Speaker’s reading of the law. It appears that such an approach would render nugatory critical facts and limitations expressed by the Supreme Court in Marsh, even though the Court
itself and many other lower federal courts have found those points dispositive. In pointing to congressional practices that have been sustained, but without reference to the prayers’ contents, he asks that we read into those cases issues that simply were not addressed by the courts.

The Speaker advances several other arguments that require now, and on plenary review, our respectful attention. He suggests that prohibiting clerics from invoking Christ would violate the Free Exercise or Free Speech Clauses of the First Amendment. These issues, while new to this circuit’s jurisprudence, have been addressed by other courts and have been rejected. The same fate has met the argument that deciding which prayers are sectarian is an inappropriate role for judges.

The majority concludes:
In assessing the Speaker’s chance of success on the merits of his appeal and in balancing the slight and temporary injury he faces absent a stay, we must conclude that the Speaker has not met his burden of establishing that a stay ought to be granted.
Judge Kanne's dissent begins at the bottom of page 18:
Because I believe the Speaker’s likelihood of success on the merits is greater than the majority deems it, and the balancing of the equities favors granting a stay, I respectfully dissent. * * *

The legal uncertainty caused by the special place legislative prayer holds in our nation’s heritage and our Establishment Clause jurisprudence, the absence of irreparable harm, and the deference due to another sovereign’s internal spiritual practices require that we stay the district court’s injunction at least until we can determine for ourselves whether a constitutional violation has occurred.

[Update] Another writer today states: "In its opinion, the 7th Circuit ruled the issues were so important in the House prayer case that it wanted to hear oral arguments. Those arguments will likely take place this summer." I am unable to find such a statement in today's opinion denying a motion for stay.

[Update 2] See Advance Indiana for more on today's ruling.

[Update 3] I think what the Court said is that instead of dismissing the request for a stay with a brief order, they had elected to write a full opinion. Here, from p. 2 of the opinion:

For the reasons set forth in this opinion, we deny the stay. Because this matter involves the internal proceedings of a state legislative body and therefore raises important federalism concerns, we have departed from our usual practice of deciding preliminary matters such as this one by a short order and have elected to set forth our views in more plenary fashion. We hope that, by proceeding in this manner, the tentative nature of our analysis at this very early point in the litigation will be plain to all.

Posted by Marcia Oddi on March 1, 2006 01:35 PM
Posted to Ind. (7th Cir.) Decisions