« Ind. Courts - "Lawrence County Judge Found Dead In Home" [Updated] | Main | Law - Two worth reading entries from WSJ Blog »

Wednesday, October 31, 2007

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

Coverage this morning of the 7th Circuit's 2-1 decision yesterday in the legislative prayer appeal includes:

"House prayer ban falls on appeal: Court finds plaintiffs have no legal right to sue," reported by Niki Kelly of the Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – The 7th Circuit U.S. Court of Appeals ruled on Tuesday that Hoosier taxpayers have no standing to challenge the content of prayer given in the Indiana House chamber, a move that effectively ends restrictions that have been in place since 2005.

The decision remands the case with orders to dismiss it for lack of jurisdiction, though it can be appealed.

The court did not rule on the merits of the case – whether prayers offered at the podium to open legislation session can be sectarian or favor one religion.

Instead, the judges found in a 2-1 decision that the taxpayers who sued lacked legal standing to bring the case.

“The plaintiffs have not tied their status as taxpayers to the House’s allegedly unconstitutional practice of regularly offering a sectarian prayer,” the ruling said. “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 ruling goes on to acknowledge that a minimal amount of money is spent in the administration of the program but “the plaintiffs have not pointed to any specific appropriation of funds by the legislature to implement the program.”

The decision relied heavily on a recent U.S. Supreme Court decision. * * *

But the dissent in the case points out that nothing in the opinion should be construed as a ruling in favor of the House’s procedures.

“Should someone come along who meets the majority’s concept of standing, the question whether the House may sponsor prayers at state expense urging everyone in the chamber to adhere to Christianity, or edicts declaring the room a ‘hallowed place,’ or musical exhortations, revival-style, to ‘talk with Jesus,’ is an open one.”

"Limits on House prayers lifted: Plaintiffs don't have standing, court says," reported by Lesley Stedman Weidenbener of the Louisville Courier Journal. Some quotes:
A federal appeals court yesterday lifted a lower court's restrictions on prayers in the Indiana House that had banned ministers from referring to Jesus Christ or making other overt references to specific denominations.

The 7th U.S. Circuit Court of Appeals did not rule on whether such references are constitutional. Instead, it said the taxpayers who filed a lawsuit challenging past sectarian prayers did not have standing to do so.

The court said that the taxpayers had not shown that the state had a specific appropriation to fund the prayers or had "extracted from them tax dollars for the establishment and implementation" of government-backed religion. That was necessary to have the right to sue, the appeals court said.

"We are well aware of the time and energy that the parties and the district court have expended on the merits of this matter," the appeals court said. "However, if 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." * * *

The dissenting judge in the ruling, Circuit Judge Diane Wood, wrote that her colleagues were too narrow in their definition of standing and should not have determined that an appropriation for the prayers had to be present for the taxpayers to be aggrieved.

"Under the majority's approach, even if the Speaker decides to start working his way through the Anglican Book of Common Prayer day by day, notwithstanding the presence of Jewish, Muslim, Hindu, Buddhist, and other legislators, staff, and constituents, nothing can be done to enforce the command of the Establishment Clause," Wood wrote.

"As long as a majority of the House is Christian, it is also reasonable to predict that the House itself will never take action to curb such a practice," she wrote.

The headline on the front-page of my printed Indianapolis Star this morning reads: "Court answers only part of House House prayer: Foes of sectarian prayers say ruling leaves door open for new appeal." Bill Ruthhart reports:
Sectarian prayers, including those to Jesus Christ, could return to the front of the Indiana House chamber after a court ruling Tuesday, but opponents warned of a legal challenge if that happens. * * *

Tuesday’s decision didn’t center on whether the prayers should be allowed. It focused more narrowly on whether the plaintiffs, a group of four taxpayers, had the legal standing to sue.

In its 2-1 opinion, the court ruled there were no expenditures directly tied to the prayers. Therefore, as taxpayers, the plaintiffs had no standing to sue.

But that doesn’t mean the legislature should resume its practice of sectarian prayers, said Ken Falk, an attorney for the ACLU of Indiana.

“The one bit of caution is that the 7th Circuit did not approve the prayer practices, and I would hope that the result of this is that the state does not go back to this practice of sectarian prayer,” Falk said. “If that would occur, there could be people who could bring litigation.”

Falk said his organization would not hesitate to file another lawsuit if approached by someone who “regularly attends the sessions and is subjected to the unwanted prayers.”

Under Tuesday’s ruling, he argued, such people would have the standing to sue.
“This doesn’t in any way make the practice any less unconstitutional than it was,” Falk said. “It just indicates that the people who brought this lawsuit, in the estimation of the two judges, were not the proper people.”

Bosma dismissed the threat of another suit.

“I’m sure the Civil Liberties Union won’t rest until all prayer is erased from every aspect of public life,” he said.

Bosma said he wasn’t concerned that the ruling wasn’t based on the case’s merits.

“We’ll take a win any way,” he said. “A hole in one is a hole in one no matter if it hits a tree or you hit it right in the cup.”

Falk said he is recommending his clients ask for Tuesday’s decision to be heard by the 7th Circuit’s full panel of 11 judges. Bosma said he’s confident the ruling would stand.

Carl Tobias, a constitutional law expert at the University of Richmond in Virginia, said he isn’t so sure.

“I think it is really a close case, and I think it will go to the whole court of the 7th Circuit to make the decision,” Tobias said. “A majority of that whole court might yet find that there is standing. So it’s not over yet.”

Judge Diane Wood, who wrote the dissenting opinion Tuesday, argued, “In my view, “the taxpayer-plaintiffs before us have alleged enough to win the right to present their challenges to the House prayer.”

Posted by Marcia Oddi on October 31, 2007 08:27 AM
Posted to Ind. (7th Cir.) Decisions