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Tuesday, October 30, 2007

Ind. Decisions - 7th Circuit decides legislative prayer case, dismissing for lack of standing

The 7th Circuit has issued its long-awaiting decision today in the legislative prayer case, dismissing it for want of jurisdiction. [For background, see this long list of ILB entries.]

In Hindrichs v. Bosma [now styled Speaker of the House of Representatives] (SD Ind., Judge Hamilton), a 57-page, 2-1 opinion in the case argued Sept. 7, 2006 and issued Oct. 30, 2007, Judge Ripple writes:

Four Indiana taxpayers, Anthony Hinrichs, Henry Gerner, Lynette Herold and Francis White Quigley, brought this action against the Speaker of the House of Representatives of the Indiana General Assembly, challenging the House’s practice of opening each session with a prayer. The district court agreed with the plaintiffs that the practice of legislative prayer as implemented by the House violated the Establishment Clause and issued a permanent injunction. The Speaker timely appealed and sought a stay of the district court’s ruling pending full briefing before this court. We denied the stay but noted that our decision was based only on a preliminary understanding of the facts surrounding Indiana’s practice. See Hinrichs v. Bosma, 440 F.3d 393 (7th Cir. 2006). After briefing, oral argument and supplemental briefing, we now hold that the plaintiffs do not have standing to maintain this action. We therefore reverse the district court’s judgment and remand the action with instructions to dismiss for want of jurisdiction.

In the present case, the plaintiffs are challenging the practice of legislative prayer as implemented by the Indiana House of Representatives. It is clear from the parties’ stipulations that Indiana’s practice consists of a “Minister of the Day” program that involves the offering of a prayer by a member of the clergy with representatives filling in to offer the invocation only when “no cleric [is] present.” R.16 at 3. The program, as it is presently administered, is not mandated by statute. The origin of the practice is House Rule 10.2, and that rule merely provides that a prayer or invocation be given each meeting day before the House conducts any business. The manner in which the program is currently administered is a matter of House tradition, implemented at the discretion of the Speaker. Although there is some minimal amount of funds expended in the administration of the program, the plaintiffs have not pointed to any specific appropriation of funds by the legislature to implement the program. Furthermore, other than the costs of webcasting, the only costs incurred are postage for the sending of thank-you letters and pictures. These costs not only are unrelated to the content of the prayers offered, they are unnecessary for the administration of the “Minister of the Day” program.

Under these circumstances, we simply cannot conclude that the nexus requirements of Flast, as explained in Hein, have been met. The plaintiffs have not tied their status as taxpayers to the House’s allegedly unconstitutional practice of regularly offering a sectarian prayer. They have not shown that the legislature has extracted from them tax dollars for the establishment and implementation of a program that violates the Establishment Clause. The appropriations, which cover the incidental costs of the program, “did not expressly authorize, direct, or even mention the expenditures,” Hein, 127 S. Ct. at 2566, attendant to the “Minister of the Day” program. Instead, the plaintiffs allege only an “ ’expenditure of government funds in violation of the Establishment Clause,’ ” which the Court explicitly rejected as inadequate in Hein. Id. at 2565 (internal citations omitted). * * *

We are well aware of the time and energy that the parties and the district court have expended on the merits of this matter. However, “[i]f a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.” Cuno, 126 S. Ct. at 1860-61.

Conclusion. For the foregoing reasons, we reverse the district court’s judgment, and we remand the case to the district court with instructions to dismiss for want of jurisdiction. The Speaker may recover his costs in this court.

[Dissent by Judge Wood beginning on p. 33, concludes on p. 56-57] In my view, the taxpayer-plaintiffs before us have alleged enough to win the right to present their challenge to the House Prayer before a judicial forum. They are challenging a legislative act, and they have alleged concrete pocketbook injuries. Given both the ruling in Marsh and the qualifications on that ruling, the issue they wish to present is a serious one. They argue, in essence, that preferential access to the Speaker’s stand for adherents to the Christian faith is exactly the kind of problem that the First Amendment’s Establishment Clause was supposed to remedy. Were this a simple Establishment Clause case in which they complained about hearing the prayers as they walked past the door of the House Chamber on their usual way to work, they may very well have been entitled to proceed. The majority overextends the command of Freedom From Religion in denying them a day in court. I respectfully dissent.

Posted by Marcia Oddi on October 30, 2007 12:37 PM
Posted to Ind. (7th Cir.) Decisions