Appeals court lifts ban on praying in Jesus' name

INDIANAPOLIS — An appeals court panel apparently gave the OK for prayers mentioning Jesus' name in the Indiana state legislature to return, tossing out a lawsuit Oct. 30 that had garnered national attention two years ago when the prayers were ruled unconstitutional.

The 2-1 decision by the U.S. Seventh Circuit Court of Appeals is a victory for social conservatives, although the justices avoided dealing directly with whether the prayers violate the Establishment Clause of the U.S. Constitution, as the lower court had ruled.

Instead, the majority ruled that the four Indiana residents who brought the lawsuit lacked standing because they had "not shown that the legislature has extracted from them tax dollars for the establishment and implantation" of a program that supposedly violates the Establishment Clause.

Glen Lavy, an attorney with the Alliance Defense Fund, applauded the ruling. ADF filed a friend-of-the-court brief asking the judges to reinstate the prayer practice

"Those who oppose Christian invocations are essentially saying that the Founders were violating the Constitution as they were writing it," Lavy said in a statement. "People of all religions have always had an equal opportunity to offer prayer before Indiana legislative sessions, and this ruling ensures that those who offer prayers in the name of Jesus will not lose that opportunity either."

The lawsuit was brought against the speaker of the state House of Representatives by the Indiana affiliate of the ACLU, which won the initial round in November 2005 when U.S. District Judge David F. Hamilton ruled prayers must be "non-sectarian" and must not mention "Christ's name or title or any other denominational appeal." Later, Hamilton clarified the ruling and said it applied to all sectarian prayers, not just those mentioning Christ.

Of the prayers offered during the 2005 legislative session, a majority were Christian in nature, mentioning "Jesus" or "Christ," although at least one prayer referenced Buddha. Hamilton ruled that individuals do not have a right to "use an official platform like the Speaker's podium at the opening of a House session to express their own religious faiths."

But the Seventh Circuit Court panel ruled that the four citizens did not have standing to bring the case, in part because the House prayer program "is not mandated by statute" (that is, a legislative-passed law) but is simply a rule the House has adopted on its own. Previous Supreme Court cases — including this year's ruling in Hein v. Freedom from Religion Foundation — allow for such a distinction, the majority said.

"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," Judge Kenneth Ripple wrote for the majority. "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."

The lawsuit was brought against then-House Majority Leader Brian Bosma, a Republican. When Democrats took charge, new Majority Leader B. Patrick Bauer decided to continue with the appeal of the lower court's ruling. Bauer has been reading non-sectarian prayers in order to abide by the ruling, The Indianapolis Star reported.

After the panel's decision, Bauer released a statement saying he was "delighted that the court has left alone a tradition that has been a part of House proceedings for nearly 190 years." He did not say, though, whether more Christian-oriented prayers would be allowed to return.

Additionally, the ACLU's Indiana affiliate (known as the Indiana Civil Liberties Union) could appeal.

"I am honestly elated that the Seventh Circuit has protected the rights of individuals to speak openly and freely in every way before the crucible of free speech, the state legislature," Bosma, now minority leader, said, according to The Star.

Mathew D. Staver, founder of the religious liberty organization Liberty Counsel, said the rightward shift on the Supreme Court is having an impact on lower courts. Liberty Counsel filed a friend-of-the-court brief asking that the prayer practice be left alone.

"The U.S. Supreme Court's decision handed down earlier this year is already beginning to close the door on lawsuits that seek to eliminate public acknowledgment of God and religion," Staver said in a statement. "Mere offense at the mention of God does not give the right to file a lawsuit. … Prayers offered at legislative sessions are permissible acknowledgements of God and do not establish a religion. Legislative prayer predates the First Amendment and was present when our nation was birthed in the delivery room of the Constitutional Convention."

The two judges in the majority — Ripple and Michael Kanne — were Reagan appointees. The dissenting judge, Diane Wood, and the circuit court judge, Hamilton, were Clinton appointees.