House Speaker Brian Bosma was dealt a defeat today in the first round of his appeal of Judge David Hamilton's order earlier this year prohibiting the Indiana House of Representatives from allowing Christian only prayers as part of the chamber's official proceedings. A three-judge panel of the 7th Circuit Court of Appeals voted 2-1 to turn down Bosma's request that the order be stayed until the panel has heard arguments and ruled in the case. While the underlying merits of the appeal must still be decided, the majority's opinion gives us a strong hint of how the court will ultimately rule.
The standard Bosma was unable to demonstrate on behalf of the House according to a majority of the three-judge panel was that "a stay pending appeal . . . has a significant probability of success on the merits; that it will face irreparable harm absent a stay; and that a stay will not injure the opposing party and will be in the public interest."
The majority opinion was written by a Reagan appointee, Kenneth Ripple of South Bend, and a Clinton appointee, Diane Wood of Chicago. As to the likelihood of success on the merits of the case, on the issue of the taxpayers' standing in this case to bring the suit, the majority opinion spoke dismissively of Bosma's argument that no standing existed:
If we were to accept the Speaker’s argument as presented at this stage of the litigation, any time an unconstitutional practice could be replaced at no cost with a constitutional one, those asserting taxpayer standing would be powerless to challenge it. The Speaker has yet to respond persuasively to the district court’s criticism that acceptance of such a rule would mean that taxpayers are without standing to challenge the erection of a large stone cross on public land if it theoretically could be replaced with a secular monument of the same price. Such a theory misapprehends the purpose of taxpayer standing: The true injury is whether the plaintiff’s tax dollars are being spent in an illegal manner.
The principle argument on appeal is whether the issues falls within the reach of the Establishment Clause. The majority opinion found Judge Hamilton's interpretation of the only U.S. Supreme Court decision on the question of sectarian prayers in state legislative bodies consistent with interpretations provided in other circuit courts and state legislative courts and offered little hope that they would agree with Bosma on this point:
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 was most critical of Bosma on the issue of whether he had demonstrated that the House would suffer irreparable harm if the stay was not lifted. Reacting negatively to Bosma's decision to cut off all prayers in the House, the court said:
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 . . . Although this claim certainly is deserving of more plenary and respectful study on the merits review, we cannot say that requiring the legislature to perform a task undertaken by countless other public bodies that begin their proceedings with a prayer is an irreparable harm--especially when the legislature itself has articulated such a goal.
Judge Michael Kanne, a Reagan appointee from Lafayette, Indiana, offered some solace to Bosma in supporting his request for a stay. But Kanne made clear that this in not a case about free speech as so many of Bosma's supporters have suggested; rather, it is an Establishment Clause case. Kanne said, "At the outset, it should be noted that the harm to the plaintiffs is not that their speech is being restricted. Thus, this is not a case where absent immediate relief speech will be diluted or lost." He added, "This is also not a case where the state is interfering with the plaintiffs’ ability to freely exercise their religious beliefs. The potential harm in this case, assuming that the legislative prayer at issue is unconstitutional, is a harm to the public in general: the erosion of religious liberty and freedom that may arise due to a state’s impermissible affiliation with religion." The legislature's long-stading 188-year history of prayers seemed to tilt Kanne in the direction of supporting the stay. He explained:
Deference is certainly due here. The Indiana General Assembly, democratically elected by the citizens of the State of Indiana, has been opening its sessions with a prayer or invocation, frequently delivered by a religious cleric, for the last 188 years. If for those past 188 years the legislative prayer at issue here has occurred on the wrong side of what is at best a murky constitutional line, then we can at least provide the clarity of our opinion before placing a state legislative body under federal supervision.
It cannot clearly be concluded from Kanne's dissenting opinion that he will support Bosma when the case is finally decided as he saw little harm to the plaintiffs at this point in lifting the stay. He said, "While I see strong legal arguments for both parties as to the merits, my real disagreement with the majority centers on the balancing of the equities. At the outset, it should be noted that the harm to the plaintiffs is not that their speech is being restricted. Thus, this is not a case where absent immediate relief speech will be diluted or lost."
Hat tip to the Indiana Law Blog for the case reference and to this point the court made, which further evidenced its thinking on the future of the case:
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.
The handwriting is on the wall Mr. Speaker. End this foolish waste of taxpayers money. But reading his reaction to the court's decision, that's not going to happen because he plans to take it all the way to the Supreme Court. Bosma told the AP, “Of course we’re disappointed that the 7th Circuit did not grant our request for stay, but we aren’t shocked by it . . . I still firmly believe our ultimate relief will be at the United States Supreme Court level.” Bosma also continues to shamelessly misrepresent the issue in the case. “We will continue to work for free speech in the government process,” he said. As an attorney, it is simply inexcusable for him to to continue making a free speech argument when he knows this case is about the Establishment Clause.
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