Sectarian legislative prayer suffers another set back

The 7th Circuit Court of Appeals issued an opinion denying Speaker Bosma’s request for a stay of the trial court’s order enjoining him from allowing sectarian prayer as official business of the Indiana House of Representatives.

When weighing such a request, the Court engages in the sort of analysis a trial court engages in when determining whether to issue a preliminary injunction. Basically, it weighs the likelihood of the moving party’s success on the merits along with the degree of harm likely to be suffered by each party if the stay is granted or not granted. The short answer is that the 3 judge panel decided that Speaker Bosma did not have a very good chance of winning on the merits. While the 7th Circuit has not decided this sort of issue directly, the Court noted that other Circuits’ decisions and the Supreme Court’s decisions suggested that Judge Hamilton properly followed the law when crafting his opinion and order. Two of the three judges also found the harm to the House of Representatives to be minimal if the injunction is left in place:

Mr. Bosma contends that such harm would stem from the fact that Indiana’s long tradition of offering invocations would be broken absent a stay because no prayer at all can continue in the face of the district court’s injunction. However, as the district court took pains to point out, this harm to the House of Representatives’ legislative tradition need not occur under the terms of the injunction. The injunction permits prayer so long as it is of an nondenominational nature and does not “use Christ’s name or title or any other denominational appeal.”
. . .
The House’s current practice is to ask clergy to “strive for an ecumenical prayer.” It is the simply the toleration of the
failure to follow this practice that has produced this litigation and required the action of the federal court. In reply to the injunction, the Speaker chose to cut off all prayer and, it would appear, has sacrificed the core aspect of the tradition–beginning the session with an invocation for divine guidance–in order to continue a deviation from the House’s articulated desire that the prayer not be identified with any particular denomination.

The third judge did not primarily disagree with the majority on the likelihood (or lack thereof) of Rep. Bosma’s success on the merits, but with their analysis of the relative harm if the trial court’s order was stayed pending appeal. The third judge thought that, because the potential harm of unconstitutional government prayer was not so much to the Plaintiffs particularly as to the public generally, the harm would not be significant in the time it would take the Court of Appeals to decide the case.

Several of Indiana’s bloggers have already provided some excellent coverage of the decision, most notably to me The Indiana Law Blog, Advance Indiana, and Cerulean Blue.

The Indy Star has an article here. The Fort Wayne Journal Gazette has an article here. The Louisville Courier-Journal has an article here. Rep. Bosma is saying that he has always figured relief, if any, would come from the Supreme Court. I think that is right, because I think the Supreme Court’s prior case law mandates Judge Hamilton’s order, and the only court that can overrule a Supreme Court decision is the Supreme Court. But, that means any criticisms of Judge Hamilton and his ruling are misplaced. He is bound to follow precedent. Otherwise, he would be one of those dreaded “activist judges” we hear so much about. Ken Falk, attorney for the Indiana Civil Liberties Union, says he is pleased by the ruling but hesitates to read too much into it in terms of what the ultimate outcome might be.