Cloture Voted On Hamilton's Nomination For 7th Circuit

Yesterday, the U.S. Senate voted 70-29 to invoke cloture and thus end debate on the nomination of Indiana federal district judge David Hamilton to the U.S. 7th Circuit Court of Appeals. (See prior related posting.) As reported by the Christian Science Monitor, opponents raised a number of issues, including Hamilton's short stint after college with ACORN and a decision he wrote invalidating Indiana's informed consent abortion law that would have required two trips to a clinic to obtain an abortion. However, the greatest focus by opponents were Hamilton's two related 2005 decisions holding that the Indiana House of Representatives, in opening its sessions with sectarian prayer, violated the Establishment Clause. (See prior postings 1, 2.)

The most strident criticisms accused Hamilton of "prohibiting prayers that mention Jesus Christ in the Indiana House of Representatives, but allowing prayers that mention Allah." (Red State blog.) That charge grew out of language in Hamilton's second opinion explaining the scope of the injunction. It specifically banned sectarian prayer, including Christian prayer that uses the name of "Christ." Hamilton emphasized that the only sectarian prayers that seem to have been offered in the Indiana House were Christian ones. Non-sectarian prayer, addressing God more generically, is permitted. Hamilton wrote:

The Arabic word "Allah" is used for “God” in Arabic translations of Jewish and Christian scriptures. If those offering prayers in the Indiana House of Representatives choose to use the Arabic Allah, the Spanish Dios, the German Gott, the French Dieu, the Swedish Gud, the Greek Theos, the Hebrew Elohim, the Italian Dio, or any other language's terms in addressing the God who is the focus of the non-sectarian prayers contemplated in Marsh v. Chambers, the court sees little risk that the choice of language would advance a particular religion or disparage others. If and when the prayer practices in the Indiana House of Representatives ever seem to be advancing Islam, an appropriate party can bring the problem to the attention of this or another court.

The Senate is scheduled to take its final vote on Hamilton's nomination today.

UPDATE: On Thursday the Senate gave final approval to Hamilton's nomination by a vote of 59-39.

Indiana House Speaker Has Not Decided About Opening Prayer

Last year, an Indiana federal court ruled that the Indiana House of Representatives had violated the Establishment Clause by opening its sessions with specifically sectarian prayers. (See prior posting.) After the ruling, House members gathered in the back of the House Chamber before the sessions began to offer prayers, rather than switching to non-sectarian prayers from the podium. The state Senate, even though it was not a party to the litigation, switched to a moment of silence at the opening of their sessions. The Indianapolis Star reports that as of Friday, current House Speaker B. Patrick Bauer had not decided whether, when the new session opens tomorrow, the House will have an official invocation as has been the tradition for 189 years. He says that whatever he does will be consistent with the court's order. The court's decision is currently on appeal.

UPDATE: On Monday, House Speaker Pat Bauer opened the 2007 session of the Indiana General Assembly with a non-sectarian prayer whose text had been approved by state Attorney General Steve Carter. The same prayer will be read every day as the opening invocation. (Louisville (KY) Courier-Journal).

Clergy Led Prayer Is Back In Indiana House

The Indy Star reports that this week, for the first time since January 2006, the Indiana state House of Representatives opened its session with a prayer led by a clergyman. In late 2005, a federal district court enjoined sectarian prayer in the House, but in late 2007 that decision was reversed by the 7th Circuit that held plaintiff lacked standing. (See prior postings, 1, 2.) In 2006, House members had gathered at the back of the Chamber to pray. In 2007 and 2008, the House Speaker read a nonsectarian prayer from the podium. But now clergy-led prayer has returned. Rev. Matthew Barnes opened Tuesday's session with a non-sectarian invocation that asked for God's guidance and blessings, but did not mention Jesus.

UPDATE: Thursday's Fort Wayne Journal Gazette says that the Indiana Senate will open its 2009 sessions with prayers offered by Senate members and by visiting clergy.

Christian Legislative Prayer Enjoined In Indiana; Urged In Colorado City

In Hinrichs v. v. Bosma, decided yesterday by the U.S. District Court in the Southern District of Indiana, the court found that the Indiana House of Representatives, in opening its sessions with sectarian prayer, violates the Establishment Clause of the U.S. Constitution. 14WFIE reported on the decision. (Also see prior related posting.) Here is an excerpt from the court's opinion:

the evidence shows that the official prayers offered to open sessions of the Indiana House of Representatives repeatedly and consistently advance the beliefs that define the Christian religion: the resurrection and divinity of Jesus of Nazareth. The Establishment Clause “means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions).... The sectarian content of the substantial majority of official prayers in the Indiana House therefore takes the prayers outside the safe harbor the Supreme Court recognized for inclusive, non-sectarian legislative prayers in Marsh v. Chambers, 463 U.S. 783 (1983). 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.

Meanwhile, in Boulder, Colorado, the Daily Camera yesterday reported that the mayor pro-tem, Randy Ahrens, has suggested that City Council meetings be opened with a prayer to set a positive tone after a contentious campaign season. Two pastors offered prayers at the start of the first meeting of the newly-elected Council on Nov. 15. However, their remarks provoked controversy because both preachers represented Christian churches and invoked the name of Jesus Christ in the prayers. Members of Council seem about evenly split on the proposal.

Indiana Senate Opens With Sectarian Invocation

Prayer in the Indiana legislature remains in the news. Now that the constitutional challenge by taxpayers to opening House sessions with sectarian prayer has been dismissed on standing grounds (see prior posting), the Indiana state Senate is getting into the fray. On Tuesday, State Sen. Dennis Kruse offered the opening invocation, and ended it with the words: "We pray this in the name and beloved power of our Lord Jesus Christ and for his sake, Amen." (Anderson, IN Herald Bulletin). Yesterday's Indianapolis Star says that Senate President Pro Tem David Long specifically permitted the sectarian prayer, concluding that the Senate was on safe legal ground now that the suit against the House speaker has been dismissed. However House Speaker B. Patrick Bauer said state Attorney General Steve Carter advised him not to permit sectarian prayer in the House because the 7th Circuit's standing opinion is subject to a pending motion for en banc review. ACLU attorney Ken Falk said that his organization would likely sue on behalf of someone who was subjected to the prayer if the Senate continues the use of sectarian invocations.

7th Circuit Holds Taxpayers Lack Standing To Challenge Indiana Legislative Prayer

Yesterday in Hinrichs v. Speaker of the House of Representatives of the Indiana General Assembly, (7th Cir., Oct. 30, 2007), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision, held that Indiana taxpayers lack standing to challenge the opening of Indiana legislative sessions with sectarian prayers. The majority applied two recent U.S. Supreme Court decisions-- DaimlerChrsyler Corp. v. Cuno, a 2006 case that held state taxpayer suits in federal court must meet the same criteria as federal taxpayer suits, and Hein v. Freedom from Religion Foundation, Inc., a 2007 case that interpreted federal taxpayer standing narrowly. The majority opinion in the 7th Circuit relied on the fact that there was no specific legislative appropriation establishing the program that invited guest ministers to deliver invocations. The majority said that the minimal costs associated with the program have nothing to do with the content of the prayers offered. Judge Wood dissenting argued that the House Rule calling for opening each session with prayer is a legislative act that creates a pocketbook injury to plaintiff taxpayers, and therefore gives them standing.

Covering yesterday's decision, the Indianapolis Star quotes ACLU attorney Ken Falk. He says if the legislature resumes sectarian prayer, his group would be willing to file suit on behalf of a person who would likely have standing-- someone who regularly attends legislative sessions and must listen to the prayers.

Meanwhile the American Jewish Committee issued a release saying that yesterday's decision "is extremely alarming because it denies taxpayers the right to challenge a legislative act that in practice gives preferential access to Christian clergy in determining who shall present a daily legislative prayer." Indiana Attorney General Steve Carter released a statement in support of the decision, saying: "Legislative prayer is a worthy act that I think the State should protect within relevant legal precedents."

Numerous prior postings on the case can be accessed at this link. Links to a recording of the Sept. 2006 oral arguments before the 7th Circuit , and to the earlier opinion staying the lower court's injunction pending appeal, are also available online.

Injunction Stay Pending Appeal Denied In Indiana Legislative Prayer Case

Indiana federal district court judge David Hamilton has written an extensive opinion supporting his refusal to stay his injunction, pending appeal, in the case that prohibited further sectarian prayer in the Indiana House of Representatives. In Hinrichs v. Bosma III, 2006 U.S. Dist. LEXIS 4740 (SD Ind., Jan. 24, 2006), the court held: "The defendant has not shown that he or others will suffer cognizable irreparable harm by complying with the injunction while the appeal goes forward. The injunction allows official non-sectarian prayers like those the Supreme Court approved in Marsh. Neither the defendant nor any other person has a constitutional right to use an official prayer to express and advance his personal religious beliefs. The balance of harms also weighs against a stay."

In concluding that House Speaker Bosma had showed no irreparable harm, the court said: "The Speaker's claim that the injunction interferes with his 'ability to accommodate the religious needs of those who lead these prayers' reflects a persistent misunderstanding of the court's decision and of the applicable law. All individuals -- the Speaker, all House Members, and any guests who might be invited to offer an official prayer -- retain the right to pray and worship as they see fit in private and non-official settings."

Discussing applicable precedents at length, the court said that it was not persuaded that defendants were likely to succeed on appeal either on their challenge to plaintiffs' standing or on the merits of the case. (See prior related postings 1, 2, 3.)

Full Opinion Refusing To Amend Indiana Legislative Prayer Ban Now Available

Federal district Judge David Hamilton's full opinion refusing to amend his earlier order prohibiting sectarian prayer in the Indiana legislature has now become available. (See prior postings 1, 2 .) Largely unreported before was he fact that Hinrichs v. Bosma II, (Dec. 28, 2005), contains an interesting holding on standing. While most of the plaintiffs in the case based their claims on their standing as taxpayers, one, Anthony Hinrichs, also was a lobbyist who had listened to many of the prayers. After the trial of the case, Hinrichs' employer, Indiana Friends Committee on Legislation, fired him as a lobbyist because of the litigation and his position on legislative prayer. In its Dec. 28 decision the court held that even though standing of plaintiffs is now based only on taxpayer status, the court is not required to limit its injunction to merely prohibiting the expenditure of public funds on sectarian prayer, but can prohibit such prayers even if they are financed in other ways.

The court also clarified that the injunction purposely did not require the Speaker of the House to obtain advance assurances from those offering legislative prayers that they would be non-sectarian, nor does it require the Speaker to interrupt a prayer if it turns out to be sectarian. But the Speaker must give pointed advice about sectarianism in inviting individuals to deliver prayers. Finally the court clarified what is a "sectarian" Christian prayer. "Prayers are sectarian in the Christian tradition when they proclaim or otherwise communicate the beliefs that Jesus of Nazareth was the Christ, the Messiah, the Son of God, or the Savior, or that he was resurrected, or that he will return on Judgment Day or is otherwise divine. "

7th Circuit Hears Arguments In Indiana Legislative Prayer Case

The Associated Press reports that yesterday the U.S. 7th Circuit Court of Appeals heard arguments in Hinrichs v. Bosma, a case in which a federal district court banned the Indiana House of Representatives from opening its sessions with sectarian prayer. (See prior posting.) Interestingly, the U.S. Department of Justice filed a brief supporting Indiana House Speaker Brian Bosma, and participated in oral argument. The brief argued that the trial court had imposed too strict a standard, effectively banning any mention of Jesus Christ or other sectarian references. The brief said that opening prayers in the U.S. Congress often have some mention of a specific deity. Today's Indianapolis Star reports on details of oral argument that focused in part on whether prayers offered by legislators should be considered personal speech or government speech. Meanwhile Indiana House officials plan to try to raise money from the public to pay the legal fees involved in the appeal, instead of continuing to use taxpayer funds for the costs of the private law firm hired to represent House members in the litigation. (Indianapolis Star.)

Indiana House Speaker Will Not Defy Federal Judge On Prayer

The Baptist Press reported yesterday that in Indianapolis, Indiana Speaker of the House Brian Bosma refused urgings to defy the order of a federal judge banning the opening of legislative sessions with sectarian prayer. (See prior posting.) Bosma said that while the case is being appealed, members could have "informal" and "uncensored" prayers on the floor of the House before each legislative day begins -- but not a formal prayer from the podium. Under the judge's ruling prayers on the floor, rather than from the podium, can invoke Christ's name. Before Bosma spoke, members had already prayed together at the back of the House. Democrat Peggy Welch used "Holy Spirit" in her prayer, while Republican Eric Turner invoked the name of Christ.

En Banc Review Sought In Indiana Legislative Prayer Case

According to today's Indianapolis Star, the ACLU of Indiana has petitioned the U.S. 7th Circuit Court of Appeals for en banc review of the decision in Hinrichs v. Speaker of the House of Representatives of the Indiana General Assembly, (7th Cir., Oct. 30, 2007). In October, a 3-judge panel, in a 2-1 decision, dismissed for lack of standing a suit brought by four Indiana taxpayers challenging the opening of sessions of the Indiana House of Representatives with Sectarian prayers. (See prior related posting.)

Reactions To Indiana Legislative Prayer Ruling

Today's Fort Wayne Journal Gazette carries an interesting discussion of reactions to Wednesday's federal court decision in Indiana prohibiting sectarian prayer in the legislature. Rev. John T. Pless of Concordia Theological Seminary commented, "Prayer is never generic. It is always a prayer that is addressed to some deity." Ira Lupu of George Washington University Law School remarked, "We now have this kind of cultural pluralism and expansive idea about faith and spirituality. The idea that there's even a non-sectarian prayer seems like a controversial idea." Meanwhile, state legislators have their own ideas. Rep. Terry Goodin, D-Crothersville, said, "I am not going to stand for this assault on our freedoms of speech and religion. A judge is not going to tell me what I can and cannot say to express my belief in Christ." And U.S. Rep. Stephen Buyer, R-4th, suggested prayers should continue from the floor area in the House chamber: "The well of the legislative body is the most deliberative and protected place in this country. Those who speak from it are granted immunity."

Indiana Senate Moves To Non-Sectarian Opening Prayer

Facing threats of a lawsuit, Indiana' Senate on Tuesday switched to a non-sectarian opening prayer. Yesterday's Indianapolis Star reports that the ACLU, which had previously sued the Indiana House to challenge its sectarian opening prayers, had threatened a similar suit against the Senate after it opened with an overtly Christian prayer in November. (See prior related posting.)

7th Circuit Asked To OK Sectarian Prayer In Indiana Legislature

This week, according to the Indianapolis Star, Indiana state House of Representatives Speaker Brian C. Bosma filed the anticipated appeal to the 7th Circuit a lower court ruling that prohibited the House from opening its sessions with prayers that mention Jesus or endorse a particular religion. Both the Indiana House and Senate had passed resolutions directing Bosma to appeal the decision. (See prior posting.)

Obama Picks Author of Indiana Legislative Prayer Decision For 7th Circuit Vacancy

In his first judicial nomination, President Barack Obama yesterday selected Indiana federal district judge David Hamilton for a seat on the U.S. 7th Circuit Court of Appeals. (White House press release.) Hamilton was the author of two related 2005 opinions holding that the Indiana House of Representatives, in opening its sessions with sectarian prayer, violated the Establishment Clause. (See prior postings 1, 2.) Ultimately the 7th Circuit dismissed the case on standing grounds. (See prior posting.) Judge Hamilton, whose nomination must be confirmed by the Senate, was supported by both Indiana senators, Democrat Evan Bayh and Republican Richard Lugar. Reporting on the nomination, the AP says that the American Bar Association has resumed its historical role in evaluating judicial nominees-- giving Hamilton a "well qualified" rating. The Bush administration did not consult the ABA on its judicial picks.

Indiana Legislative Prayer Case Being Appealed

Yesterday the Associated Press reported that Indiana House Speaker Brian Bosma is asking a federal judge to reconsider a decision prohibiting sectarian prayer in the Indiana House of Representatives. (See prior posting.) Indiana Attorney General Steve Carter filed a motion in federal district court in Indianapolis asking Judge David Hamilton to reconsider his recent opinion that found explicitly Christian invocations to be unconstitutional. The motion also asked the judge to stay his ruling pending the requested reconsideration. At the same time, the state filed formal notice of appeal in the case to the 7th Circuit Court of Appeals.

Presidential Events Around the Country Are Being Opened by Vetted Prayers

In a little-noticed development, President Barack Obama's town halls and speaking events around the country are being opened with invocations from invited clergy. Yesterday's U.S. News & World Report says that in an unprecedented move, the White House is not only asking clergy who are recommended by local politicians to deliver opening prayers, but is requiring vetting of the text with the White House Office of Public Liaison before it is delivered. The practice has so far not engendered controversy because the prayer is delivered before the President arrives at the event, and before cable television begins its coverage.

At least three recent events have followed this pattern: a town hall in Elkhart, Indiana; a speech in Ft. Myers, Florida on the stimulus bill; and an appearance near Phoenix (AZ) to unveil the mortgage bailout plan. At the Phoenix event, the invocation was delivered by a member of the Tohono O'odham Nation. He was required to depart from the Native American practice of improvised prayer, writing his text in advance so it could be e-mailed to the White House. Barry W. Lynn, executive director of Americans United, complained: "The only thing worse than having these prayers in the first place is to have them vetted, because it entangles the White House in core theological matters."

7th Circuit Denies En Banc Review In Indiana Legislative Prayer Case

Yesterday's Indianapolis Star reports that the U.S. 7th Circuit Court of Appeals has denied a petition for en banc review in Hinrichs v. Speaker of the House of Representatives of the Indiana General Assembly. (See prior posting.) In October, a 3-judge panel in the case, in a 2-1 decision, dismissed for lack of standing a suit brought by four Indiana taxpayers challenging the opening of sessions of the Indiana House of Representatives with Sectarian prayers.

Church Camp Loses Challenge To Zoning Decision On Neighboring Dairy Farm

In House of Prayer Ministries, Inc. v. Rush County Board of Zoning Appeals, (IN App., Jan. 16, 2018), an Indiana state appeals court rejected a challenge by a church summer camp to a zoning board decision granting a special exception to a dairy farm to operate a concentrated animal feeding operation one-half mile from the summer camp.  The church argued in part that the grant of the special exception substantially burdens its religious exercise by "imperiling the health of the children" at its camp.  The court first held that the federal Religious Land Use and Institutionalized Persons Act is not available to the church here because a RLUIPA claim can be raised only by a person with a property interest in the land that is regulated.  RLUIPA does not extend to other property that is merely affected by a land use decision as to neighboring land.

The court went on to hold that Indiana's state Religious Freedom Restoration Act was also not violated:

The [Board of Zoning Appeal's] apparent assessment that House of Prayer will not be substantially burdened in the exercise of its religion by the grant of the special exception is supported by substantial evidence.

Indiana Lawyer reports on the decision.

7th Circuit Denies Stay Of Order Against Sectarian Prayer In Indiana House

In a 2-1 decision, the U.S. 7th Circuit Court of Appeals has refused to stay the judgment of the district court that enjoined the Speaker of the Indiana House of Representatives from permitting further sectarian prayer at the beginning of House sessions. The majority in the 7th Circuit concluded: "In assessing the Speaker's chance of success on the merits of his appeal and in balancing the slight and temporary injury he faces absent a stay, we must conclude that the Speaker has not met his burden of establishing that a stay ought to be granted." The full text of the 18-page majority opinion and 3-page dissent in Hinrichs v. Bosma (7th Cir., March 1, 2006) is available online. Yesterday's Chicago Tribune reports on reactions to the refusal.