Judge Hamilton in the Southern District has issued his order (pdf) in Hinrichs, et al. v. Bosma, 1:05-CV-813 (S.D. Ind. 2005). This is the case brought by the Indiana Civil Liberties Union requesting that sectarian prayers be prohibited as official business of the Indiana House of Representatives.
The short anwer is this:
Plaintiffs have standing as Indiana taxpayers to bring their claims, and they are entitled to declaratory and injunctive relief. This relief will not prohibit the House from opening its session with prayers if it chooses to do so, but will require that any official prayers be inclusive and non-sectarian, and not advance one particular religion.
(emphasis in the original.)
I have not yet had time to read the 60-page opinion, but I expect to see a lot of hand-wringing about how an “activist” judge has continued the “War on Faith” by prohibiting our elected officials’ right to pray — or some such. And, if anything like that comes out of somebody’s mouth, they’re just full of crap (unless the rest of the opinion deviates radically from the passage quoted above.)
Update: Some thoughts and relevant quotes below the fold.
Update #2 I wanted to put the specific injunction on the front page in addition to some very thoughtful comments by the Court with respect to the Establishment Clause.
The injunction:
If the Speaker chooses to continue any form of legislative prayer, he shall advise persons offering such a prayer (a) that it must be nonsectarian and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief, and (b) that they should refrain from using Christ’s name or title or any other denominational appeal.
And, Judge Hamilton’s reflection on the establishment clause:
When the Founders of this Nation set the boundaries on the power of government, the first words they wrote in the Bill of Rights were “Congress shall make no law respecting an establishment of religion . . . .†The Founders recognized that we are a people of many strong and vigorous faiths. They acted to protect the liberty to practice those faiths. The Founders also knew centuries of history in which religious conflicts had caused war and oppression. They recognized that even the best intentions of people of faith can lead to division, exclusion, and worse. And they recognized that a majority who sees its faith as true and benign can be tempted in a democratic republic to try to use the power and prestige of government to advance that faith in ways that would actually divide and exclude.
Like I said, more thoughts and quotes from the decision below the fold.
The invocation is to be a short prayer
asking for guidance and help in the matters that come before the members. We
ask that you strive for an ecumenical prayer as our members, staff and
constituents come from different faith backgrounds.
Transcripts are available for forty-five prayers. Of these, twentynine were offered in the name of Jesus, Jesus Christ, the Savior, and/or the Son. . . . The substantial majority of prayers offered during the 2005 session were explicitly Christian in content. Several examples illustrate the point. The prayer of January 4th concluded: “In the Strong name of Jesus our Savior, Amen.†. . . The January 19th prayer concluded: “We ask You to bless these leaders in the name of Jesus, Your Son, and our Lord who reigns forever and ever. Amen.” . . . “We look forward to the day when all nations and all people of the earth will have the opportunity to hear and respond to messages of love of the Almighty God who has revealed Himself in the saving power of Jesus Christ.” . . .
After the invocation and Pledge of Allegiance, Speaker Bosma reintroduced Reverend Brown, saying: “I understand he has a wonderful voice and he is going to bless us with a song.†Reverend Brown proceeded to sing “Just a Little Talk with Jesus.†A number of the legislators, staff, and visitors present in the chamber stood, clapped, and sang along at the invitation of Reverend Brown. This event prompted at least some members of the House to walk out because they believed the sectarian religious display during the legislative session was inappropriate.” . . . In addition to the many explicitly Christian prayers, the prayer for February 21st was generally inclusive but contained a feature especially offensive to Jews.
The prayer used the Hebrew name for God, known as the Tetragrammaton, which Jews do not mention aloud.
prayers from the House sessions in 2005, the court finds that, the actual practice
amounts on the whole to a clear endorsement of Christianity, sending the message to others that they are outsiders and the message to Christians that they are favored insiders. No other specific religious faith was endorsed or invoked.
In short, under the Speaker’s theory of standing, a taxpayer would never be able to challenge, on the basis of taxpayer standing, a government practice that endorsed a religion if it could also be conducted – at the same cost – without violating the Establishment Clause. Contrary to the Speaker’s view of taxpayer standing, courts have not required taxpayers to show that their taxes would decrease if the challenged practice were enjoined.
There is “a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.â€
I predict the crucial difference between government speech and private speech will also be routinely ignored.
From the Court’s opinion in Marsh v. Chambers, this court draws the
following guidance. First, the fact that prayers are offered to open legislative
sessions does not, without more, violate the Establishment Clause. Second, the fact that prayers are offered “in the Judeo-Christian tradition†also does not violate the Establishment Clause, at least where the prayers are not explicitly Christian or explicitly Jewish. Third, however, there are constitutional limits to legislative prayer. The clear implication is that where “the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief,†official legislative prayers would violate the Establishment Clause.
the current legislative prayer practices of the Indiana House, as shown by evidence from the 2005 session and when viewed as a whole, are well outside the boundaries established by the Supreme Court in Marsh v. Chambers.
A substantial majority of the prayers were explicitly Christian, offered in the name of Jesus Christ or with similar phrasing. Several used repeated references to specifically Christian beliefs and doctrine, and some can fairly be described as proselytizing efforts. On the whole, the legislative prayers were used to advance
the Christian religion.
Clerics of religious minorities often have substantial experience in getting along with a majority who believes differently and in avoiding giving offense to that majority in a public setting. Perhaps it is not mere coincidence that the only transcribed prayer in the 2005 session from someone outside the Christian religion, that of the imam, was inclusive and non-sectarian.
We cannot adopt a view of the tradition of legislative prayer that chops up American citizens on public occasions into representatives of one sect and one sect only, whether Christian, Jewish, or Wiccan. In private observances, the faithful surely choose to express the unique aspects of their creeds. But in their civic faith, Americans have reached more broadly. Our civic faith seeks guidance that is not the property of any sect. To ban all manifestations of this faith would needlessly transform and devitalize the very nature of our culture. When we gather as Americans, we do not abandon all expressions of religious faith. Instead, our expressions evoke common and inclusive themes and forswear, as Chesterfield has done, the forbidding character of sectarian invocations.
The court recognizes that the relief granted in this case might make it difficult or even impossible for some clergy or believers to offer official prayers. All are free to pray as they wish in their own houses of worship or in other settings. The individuals do not have a First Amendment right, however, to use an official platform like the Speaker’s podium at the opening of a House session to express their own religious faiths. Those who wish to participate in a practice of official prayer must be willing to stay within constitutional bounds, as spelled out in Marsh and its progeny. The alternative under the Constitution would be a complete prohibition on legislative prayer.
[…] Maybe I’m just misremembering, but I can’t recall any discussion of this provision when Speaker Bosma’s sectarian prayers as official business of the Indiana House of Representatives was being argued and decided. The taxpayers of Indiana have apparently spent $350,000 to assist the House of Representatives to maintain the right to conduct sectarian prayer in its chambers. I know that rights have a way of getting watered down as the courts consider them, but still it sure feels like I’m being asked to support a ministry when tax dollars are being spent to provide a forum for a minister to sing “Just a Little Talk with Jesus.” This entry is filed under Wingnuttery, Indiana Constitution. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site. Leave a Reply […]