* This opinion is being released initially in typescript form. 

# In the

United States Court of Appeals

For the Seventh Circuit

_______________

Nos. 05-4604 & 05-4781

ANTHONY HINRICHS, HENRY GERNER,

LYNETTE HEROLD, et al.,

Plaintiffs-Appellees,

v.

BRIAN BOSMA, in his official capacity

as Speaker of the House of Representatives

of the Indiana General Assembly,

Defendant-Appellant

.

_______________

Appeals from the United States District Court

for the Southern District of Indiana,

Indianapolis Division.

No. 05 C 813 –– **David F. Hamilton,** Judge.

_______________

MOTION FOR STAY

MARCH 1, 2006 *

_______________Nos. 05-4604 & 05-4781 Page 2

Before RIPPLE, KANNE and WOOD, Circuit Judges

.

RIPPLE, Circuit Judge. T his matter is before the court on

the motion of the appellant for a stay pending his appeal to this

court. The underlying action was brought by four Indiana taxpayers

against the Speaker of the Indiana House of Representatives. In

their complaint, they contended that the House’s practice of opening

its proc e edings with overtly sectarian prayer, usually Christian,

violates the Establishment Clause of the First Amendment. After a

bench trial, the district court issued a declaratory judgment that

Indiana’s practice is unconstitutional and permanently enjoined the

Speaker from permitting further sectarian prayer at the beginning

of House meetings. The House Speaker, the Honorable Brian

Bosma, then sought a stay of the district court’s judgment during an

appeal to this court. The district court denied the motion.

The Speaker, having filed an appeal from the underlying

judgment, now seeks a stay of the judgment in this court. The

plaintiffs have responded to the motion for a stay, and the Speaker

has filed a reply memorandum. The matter is therefore ready for

resolution. 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 on e 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.

**I**

**BACKGROUND**Nos. 05-4604 & 05-4781 Page 3

The facts in this case are n ot disputed. For 188 years, the

Indiana House has opened its official meetings with a brief prayer or

invocation, usually delivered by a cleric from an Indiana community

who is sponsor ed by a state representative. Each guest cleric

receives confirmation by mail of his temporary appointm ent;

notably, the form letter states, “[w]e ask that you strive for an

ecumenical p

rayer as our members, staff, and constituents come

from different faith backgrounds.” H inrichs v. Bosma , 400 F. Supp.

2d 1103, 1105 (S.D. Ind. 2005). Clerics otherwise receive no

instructions about the form their prayers should take. The Speaker

does not participate in the selection of guest clerics, and he usually

meets them for the first time immediately before introducing them

at the opening of a House meeting.

During the 2005 session of Indiana’s General Assembly, 53

invocations were delivered in the House: 41 by Christian clerics, 9

by representatives and one each by a layman, a rabbi and an imam.

Of the 45 invocations for which transcripts are available, 29 were

identifiably Christian. (The rabbi’s prayer was not transcribed, but

the imam’s was a nonsectarian prayer.) Exhibit one to the plaintiffs’

response to the stay motion helpfully catalogues the prayers; the

majority of the Christian prayers are identifiable by supplications to

Christ: They are given “in Christ’s name,” “through [Y]our Son

Jesus Christ,” “In the Strong name of Jesus our Savior, ” etc.

Appellees’ Mem. in Opposition to Stay, Ex.1 at 1-5. Several go

further, including one that “look[s] 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 Almi ghty God who has

revealed Himself in the saving power of Jesus Christ.” I d

. at 12.

The most dramatic example was a prayer followed by a rousing singalong, led by that day’s cleric, of the tune, “Just a Little Talk with

Jesus.” I d

. at 14. Some legislators and members of the public stood

and clapped in time as they sang; several legislators, however, leftNos. 05-4604 & 05-4781 Page 4

the House chamber, believing that the song was inappropriate. S ee

Hinrichs , 400 F. Supp. 2d at 107.

The dist rict court, in analyzing the record made by the

parties, wrote a thorough 60-page opinion. After a comprehensive

overview of the facts, the district court determined that the plaintiffs

had standing to bring this action. The court held that the plaintiffs

had succeeded in demonstrating the use of tax dollars with respect

to the sectarian invocations: Several hundred dollars support the

invocations through mailings to the guest clerics and through webstreaming (online presentation ) of each meeting, including the

invocation portion. The district court declined to accept the

Speaker’s argument that, in order to have taxpayer s tanding, the

plaintiffs must show that the elimination of the challenged practice

will result in a reduction in their tax payments. On the merits, the

district court held that Marsh v. Chambers

, 463 U.S. 783 (1983),

provided the controlling precedent, and that M arsh allows

ecumenical, nondenominational legislative prayer, but forbids such

prayer when it is overtly and consistently sectarian. The court also

declined to

accept the Speaker’s contention that courts may not

decide which prayers are Christian in nature and which are

ec umenical. In the district court’s view, M arsh rejected that

proposition. In like manner, the district court did not accept the

argument that prohibiting sectarian prayer would violate the Free

Exercise or Free Speech rights of guest clerics.

**II**

**DISCUSSION**

In reviewing a motion for a stay pending appeal, we review the

district court’s findings of fact for clear error, its balancing of the

factors under the abuse of d iscretion standard and its legalNos. 05-4604 & 05-4781 Page 5

conclusions de novo. In assessing whether a stay is warranted, the

district court was required to determine whether the party seeking

the stay has demonstrated that: 1) it has a reasonable likelihood of

success on the merits; 2) no adequate remedy at law exists; 3) it will

suffer irreparable harm if it is denied; 4) the irreparable harm the

party will suffer without relief is greater than the harm the opposing

party will suffer if the stay is granted; and 5) the stay will be in the

public interest. S ee Kiel v. City of Kenosha

, 236 F.3d 814, 815-16

(7th Cir. 2000). A party seeking a stay pending appeal has a similar

burden: It must show that it has a significant probability of success

on the merits; that it will face irreparable harm absent a stay; and

that a stay will not in jure the opposing party and will be in the

public interest. S ee Hilton v. Braunskill , 481 U.S. 770, 776 (1987).

**A. Likelihood of Success on the Merits**

**1. Standing**

The Speaker first contends that he will prevail on the merits

of the a ppeal because the plaintiffs are without standing to sue.

Both parties accept that, in order to have standing as a taxpayer, a

person must demonstrate that the challenged program is supported

by monies raised through taxe s and that the use of those monies

exceeds a specific cons titutional limitation on the use of public

funds, such as the First Amendment’s prohibition on laws

respecting an establishment of religion. See Valley Forge Christian

Coll. v. Americans

United for Separation of Church & State, Inc.

, 454 U.S. 464, 481–82 (1982); Flast v. Cohen

, 392 U.S. 83, 102–03

(1968); Metzl v. Leininger , 57 F.3d 618, 619 (7th Cir. 1995). This is

true even if the amounts in question are piddling. S ee United States

v. SCRAP

, 412 U.S. 669, 689 n.14 (1973); Lynch v. Donnelly

, 465

U.S. 668, 671 (1984) (involving expenditure of $20 per year to erect

creche); American Civil Liberties Union v. City of St. Charles

, 794Nos. 05-4604 & 05-4781 Page 6

F.2d 265, 267–68, 274 (7th Cir. 1986) (noting that Lynch assumed

standing to challenge a nativity scene that cost only $20 to arrange).

On the submissions of the parties at this early stage of the litigation,

it appears that this standard has been met. The record shows that

tax dollars supported the cost of mailings to guest clerics, at $0.54 to

$1.60 each, and the cost of web-streaming the invocation portions of

the 2005 sessions, at $1.88 per minute. By the district court’s

calculations, the total cost in tax dollars of the House’s invocational

prayers in 2005 was $448.38. H inrichs

, 400 F. Supp. 2d at 1111 n.6.

In reply, the Speaker submits that the plaintiffs are without

taxpayer standing

because the elimination of the challenged

program would no

t inure to the plaintiffs’ fiscal benefit. In other

words, because the cost of mailings and web-streamings would be the

same even if the invocations were nondenominational and therefore

permissible, the

sectarian prayers have no “marginal cost” to

taxpayers. Mr. Bosma attempts to support this theory with dictum

from this court’s recent decisio n in F reedom From Religion

Foundation v. Chao

, 433 F.3d 989, 995 (7th Cir. 2005). Although

we certainly shall review this matter once again on plenary review,

we do not believe that the Speaker’s reliance on this dictum permits

him to meet his burden of demonstrating probability of success on

the merits. In Freedo m From Religion Foundation, we held that

taxpayers had standing to challenge the President’s use of funds for

faith-based initiatives even though the funds in question were doled

out by the executive branch rather than earmarked by Congress in

specific grants. The court then noted, as an aside, that even though

all executive branch activity uses appropriated funds, citizens would

be without standing to challenge practices “that do not involve

expenditures”:

Imagine a suit complaining that the President was violating

the [ Establishment] [C]lause by including favorable

references to religion in his State of the Union address. TheNos. 05-4604 & 05-4781 Page 7

objection to his action would not be to any expenditure of

funds for a reli gious purpose; and though an accountant

could doubtl ess estimate the cost to the government of the

preparations, security arrangements, etc., involved in a State

of the Union address, that cost would be no greater merely

becaus e the President had mentioned Moses rather than

John S t uart Mill. In other words, the marginal or

incremental cost to the ta xpaying public of the alleged

violation of the establishment clause would be zero.

Id.

Read in context, this passage appears simply to repeat the rule

that taxpayers who cannot trace a challenged pra c tice to any

expenditure are wit hout standing. 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, th ose 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. Such an injury is redressed not by giving the tax

money back, s ee D.C. Common Cause v. Dis trict of Columbia , 858

F.2d 1, 5 (D.C. Cir. 1988) (“The Supreme Court has never required

state or municipal taxpayers to demonstrate that their taxes will be

reduced as a result of a favorable judgment.”); c f. Freedom From

Religion Foundation

, 433 F.3d at 990 (noting that the tangible harm

of most unconstitutional spending practices is zero, because instead

of returning the taxes that support the practices, th e government

spends the money elsewhere), but by ending the unconstitutionalNos. 05-4604 & 05-4781 Page 8

1 The other cases cited by the Speaker do not even arguably

create a “marginal cost” requirement. Rather, they simply

demonstrate that individuals who cannot trace the challenged

practice to tax dollars cannot enjoy taxpayer standing. S ee Doremus

v. Bd. of Educ. , 342 U.S. 429, 434–35 (1952) (no taxpayer standing

to challenge classroom readings of the Bible because no showing that

tax dollars fund the practice); Gonzales v. North Township of Lake

County , 4 F.3d 1412, 1416 (7th Cir. 1993) (no taxpayer standing to

challenge crucifix in public park because it was donated); Friedman

v. Sheldon Cmty. Sch. Dist.

, 995 F.2d 802 (8th Cir. 1993) (no

taxpayer standing to challenge benediction at high school graduation

because no showi ng that tax funds supported it); Freedom from

Religion Found. v. Zielke , 845 F.2d 1463, 1470 (7th Cir. 1988) (no

municipal taxpayer standing to challenge donated Ten

Commandments monument). spending practice. More to the point, the “marginal cost” statement

in Freedom From Religion Foundation is dictum in its purest form:

It occurs in a discu ssion of a hypothetical that illustrates a point

peripheral to the case at hand. I d

. It therefore is not binding

authority. C ent. Green Co. v. United States , 531 U.S. 425, 431

(2001). 1

We therefore must conclu de that the Speaker is unable to

show a substantial likelihood of success on the merits of his standing

argument.

**2. Establishment Clause**

The Supreme Court has addressed the constitutionality of

legislative prayer only once. See Marsh v. Chambers

, 463 U.S. 783,

791-95 (1983). In that case, a state legislator and taxpayerNos. 05-4604 & 05-4781 Page 9

challenged the Nebraska legislature’s practice of offering a brief

prayer, conducted by a staff chaplain whose salary was paid from tax

funds, before the start of official business each day. The Supreme

Court upheld the practice. The Court analyzed the issue largely

based on considerations of history and tr adition. Noting the

co n temporaneous writing of the First Amendment and the

establishment of legislative prayer in Congress, the Supreme Court

stated that the Framers would not have established a practice that

violated their understanding of the constitutional amendment that

t hey just had composed. The opinion holds that the practice of

legislative prayer is “simply a tolerable acknowledgment of beliefs

widely held among the people of this country.” Id . at 792.

After approving the practice in general terms, the Court

proceeded to discuss whether particular features of Nebraska’s

invocations were constitutionally problematic. It noted in a footnote

that the prayer s were “nonsectarian” and “Judeo Christian,” and

that, “[a]lthough some of [the chaplain’s] earlier prayers were often

explicitly Christian, [he] removed all references to Christ after a

1980 complaint from a Jewish legislator.” I d. at 793 n.14. In the

text of the opinion, the Court concluded: “The content of the prayer

is not of concern to

judges where, as here, there is no indication that

the prayer opportunity has been exploited to proselytize or advance

any one, or to disparage any other, faith or belief.” Id. at 794–95.

In the case now be fore us, the plaintiffs contend, and the

district court held, that the consistent and pervasive use of Christian

invocations in Indiana is the sort of practice that Marsh found

unacceptable. It is a “prayer opportunity [that] has been exploited

to . . . advance . . . one . . . faith or belief.” Id

.

The principal thrust of the Speaker’s Establishment Clause

claim here turns on whether this passage in Marsh should be read

a s limiting constitutionally acceptable prayer to nonsectarian praye r

.Nos. 05-4604 & 05-4781 Page 10

In the Speaker’s view, this language is dictum, and M arsh does not

establish a line between permissible nonsectarian legislative prayer

and impermissible sectarian legislative prayer. This reading would

appear to minimize the Supreme Court’s efforts to give guidance on

this critical question. Moreover, his position has been rejected by

the Supreme Court, as well as many lower federal courts and state

courts. Few cases have confronted squarely the constitutionality of

sectarian legislative prayer, but, notably, those cases have concluded

that Marsh

prohibits the practice.

Most importantly, the Supreme Court itself has read Marsh

as precluding sectarian prayer. In County of Allegheny v. American

Civil Liberties Union

, 492 U.S. 573 (1989), the Supreme Court held

unconsti tutional the display of a creche in a county courthouse.

Justice Kennedy’s dissent for four members of the Court maintained

that, if legislative prayer was permissible under Marsh

, then surely

the creche was also constitutional. I d. at 665 & n.4 (Kennedy, J.

dissenting). Justice Blackmun’s majority opinion replied:

Indeed, in Marsh

itself, the Court recognized that not even

“the unique history” of le gislative prayer can justify

contemporary leg

islative prayers that have the effect of

affiliating the government with any one specific faith or

belief. The legislative prayers involved in M arsh did not

violate this principle because the particular chaplain had

“removed all references to Christ.” Thus, M arsh plainly does

not stand for the sweeping proposition Justice Kennedy

apparen tly would ascribe to it, namely, that all accepted

practices 200 ye ars old and their equivalents are

constitutional today.

Id. at 603 (internal citations om itted); s ee also id

. at 604 n.53

(n oting that a Governor’s preference for Christianity and

discriminat ion against all non-Christians in his ThanksgivingNos. 05-4604 & 05-4781 Page 11

proclamati on is the “very evil” against which the Establishment

Clause is meant, in part, to protect). Furthermore, Justice

O’Connor, in her separate opinion, emphasized that both the

longstanding existence of legislative prayer and its “nonsectarian

nature” in Marsh led her to conclude that the practice did not

violate the First Amendm ent. I d. at 630–31 (O’Connor, J.,

concurring).

The only other Supreme Court case that meaningfully

elucidates Marsh

is Van Orden v. Perry , 125 S. Ct. 2854 (2005). In

that case, which approved a monument of the Ten Commandments

at the Texas capitol, the Court discussed cases that recognized the

role of God in American heritage. It cited Marsh , and in a footnote

suggested that the challenge to Nebraska’s legislative prayer m a y

have been rejected because the prayers were nons ectarian: “In

Marsh

, the prayers were often explicitly Christian, but the chaplain

removed all references to Christ the year after the suit was filed.”

Id. at 2862 n.8.

We never have addressed the constitutionality of legislative

prayer, but we have read Marsh as hinging on the nonsect arian

na ture of the invocations at issue there. S ee Doe v. Vill. of

Crestwood

, 917 F.2d 1476, 1479 (7th Cir. 1990) (striking down

town’s “Touch of Italy” festival that included a Roman Catholic mass

and stating that Marsh approved a “non-denominational” prayer);

Van Zandt

, 839 F.2d at 1218-19 (noting that in Marsh the chaplain

removed references to Chri st and there was no evidence that the

prayers were exploited to proselytize or advance one religion); City

of St. Charles

, 794 F.2d at 271 (striking down city’s display of a large

lighted cross and citing Marsh for proposition that “conve ntional

nonsectarian public invocations of the deity” are permissible).

Other circuits, howe

ver, have confronted the question of

s ectarian legislative prayer directly, and their decisio ns areNos. 05-4604 & 05-4781 Page 12

2 S ee Ninth Cir. R. 36-3 (b) (prohibiting citation to

unpublished orders by courts within the Ninth Circuit ). consistent with the district court’s conclusion. Most recently, the

Fourth Circuit relied upon Mar s h to resolve two cases involving

legislative prayer. In W ynne v. Town of Great Falls

, 376 F.3d 292

(4th Cir. 2004), the court struck down a town’s practice of opening

city council meetings with prayers that closely resembled the

majority of prayers in thi s case: brief offerings that ended with

supplications like, “In Christ’s name we pray.” I d. at 294. The

court pl aced great reliance on M arsh ’s limitation to nonsectarian

prayer and its warning that prayer that advances a particular

r eligion is impermissible; it also discussed at some length the

Court’s subsequent interpretation of Marsh in Allegheny County.

See id. at 297–301. The court concluded that the Christian prayers

at issue violate

d the rule of these two cases by “affiliat[ing]” the

government with the Christian religion. Id . at 300. A second case,

Simpson v. Chesterfield County Board of Supervisors

, 404 F.3d 276

(4th Cir. 2005), reaffirms Wynne ’s reading of Marsh

and Allegheny

County and hold

s that a local board’s nonsectarian prayers were

permissible under those cases.

The Ninth Circuit faced a similar issue in Bacus v. Palo Verde

Unified School District Board of Education , 52 Fed. App’x 355 (9th

Cir. 2002) (unpublished order). 2 There, the court struck down a

school board’s practice of sectarian invocations at official meetings,

which ended “in the Name of Jesus.” I d

. a t 356-57. The court

deliberated over whether school board prayer shou ld be analyzed

under Marsh or under school prayer cases; it ultimately did not have

to decide this issue, holding that the practice would even violate the

more lenient Marsh

doctrine. Id. at 356. According to that court,

the overtly Christian prayers wer e an inappropriate effort to

“advance” Christ ianity, in M arsh ’s terms, and showed theNos. 05-4604 & 05-4781 Page 13

3 A similar case in the Sixth Circuit also deserves mention.

In Stein v. Plainwell Community Schools

, 822 F.2d 1406 (6th Cir.

19 87), the Sixth Circuit struck down the overtly Christian

invocations and benedictions used at t wo Michigan high school

graduation ceremonies. Relying on Marsh to find that prayer in

such settings may in some cases be permissible--a view that the

Supreme Court later rejected in Lee v. Weisman

, 505 U.S. 577

(1992)--the court held that Marsh strictly prohibited the sectarian

prayers at the commence m ents, or at any other solemnizing

occasions. Stein , 822 F.2d at 1408–09; see id. at 1410 (Milburn, J.

concurring). While the decision’s broad holding is thus no longer

good law, Stein remains valuable for its interpretation of Marsh

. government’s “allegiance” to that faith, in Allegheny County ’s. Id.

at 357. 3

The Speaker invites our attention to two circuit cases to

supp ort his more limited reading of M arsh to mean that all

legislative prayer is constitutio nally permissible. In M urray v.

Buchanan

, 720 F.2d 689 (D.C. Cir. 1983) (en banc) (per curiam), the

court dismissed an appeal challenging Congress’ policy of opening its

meetings with a prayer by a paid chaplain; the appeal was pending

at the tim

e Marsh was decided. This per curiam opinion simply

notes that Marsh approved legislative prayer by a paid chaplain, and

so the identical challenge regarding Congress’ practice did not raise

“a substantial constitutional question.” I d. at 690. Although the

Speaker contends that Congress itself uses sectarian prayers, a n d

that Murray thus implicitly approved the practice, that opinion does

not mention or rely upon the content of the prayers. In addition to

the D.C. Circuit in Murray , several courts have heard challenges toNos. 05-4604 & 05-4781 Page 14

4 One of these cases was resolved on standing grounds, s ee

Kurtz v. Baker , 829 F.2d 1133 (D.C. Cir. 1987), and another simply

tracks M urray

to reject a generic challenge to the practice of

legislative prayer by a paid chaplain, see Newdow v. Eagan , 309 F.

Supp. 2d 29, 40-42 (D.D.C. 2004). A related case, Newdow v. Bush

, 355 F. Supp. 2d 265, 288–90 (D.D.C. 2005), aff’d No. 05-5003, 2005

WL 89011 (D.C. Cir. Jan. 16, 2005) (unpublished order), rejects an

attempt to enjoin the invocation at the 2005 presidential

inau guration, but does not rely on the sectarian nature of the

invocation, because the content of the prayer was not made known

in advance. (The court’s discussion of this issue gives the

impressi on of an attempt to avoid the difficult issue of sectarian

prayer at the inauguration.) In sum, these cases either do not

discuss or r ely on the sectarian nature of congressional prayer.

Should a court decide a case squarely confronting that issue, such a

case would be important authority in deciding the Indiana dispute

here, but until that time, the question of congressional prayer is not

relevant. Congress’ practice of legislative prayer. However, none of these

cases turns on the content of the prayer. 4

The Speaker also relies upon Snyder v. Murray Cit y Corp.

, 159 F.3d 1227 (10th Cir. 1998) (en banc), in which the court upheld

a city’s refusal to let a particular citizen ma k e an aggressive

invocation that derided legislative prayer and Christianity generally.

The court held that such an invocation would directly conflict with

Marsh ’s prohibiti on against prayer that “proselytize[s]” or

“disparage[s]” a particular “faith or belief.” I d. at 1234. The court

then offered its view of Marsh ’s limitations generally, stating that

prayer that proselytizes or “aggressively advocates” one religion is

prohibited; approved prayer, by contrast, “although often taking the

form of invocations that reflect a Judeo-Chri s tian ethic, typicallyNos. 05-4604 & 05-4781 Page 15

involves nonsectarian requests for wisdom and solemnity, as well as

calls for divine blessing on the work of the legislative body.” I d.; see

also id

. at n.10. Thus, Snyder offers little support for the Speaker’s

position.

Finally, several state courts ha v e addressed the issue of

legi slative prayer and are consistent with the district court’s

decision here. In R ubin v. City of Burbank

, 124 Cal. Rptr. 2d 867

(Cal . Dist. Ct. App. 2002), a case nearly identical to this one, the

court stru ck down as violating the federal constitution a city

council’s policy of using rotating clergy who offered, in the majority

of cases, overtly Christian prayers. And in Society of Separationists

v. Whitehead , 870 P.2d 916 (Utah 1993), the court upheld a city

council’s practice of legislative prayer under the Utah constitution

in large part beca

use of the pointedly nonsectarian nature of the

invocations. These cases appear to teach the rule that nonsectarian

legislative prayer is consti tutionally sound, but sectarian appeals,

including those of an overtly Christian nature, are not.

In our initial reading of t he 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 t h e First Amendment. These

issues, while new to this ci rcuit’s jurisprudence, have beenNos. 05-4604 & 05-4781 Page 16

5 For the former point, see Simpson , 404 F.3d at 288; Bacus

v. Palo Verde Unified Sch. Dist. Bd. Educ.

, 52 F. App’x 355, 357 (9th

Cir. 2002); Rubin

, 124 Cal. Rptr. 2d at 1206–07, all of which note

that individuals have sharply restrained speech and free exercise

rights when speaking on behalf of the government, rather than for

themselves alone. For the latter point, see M arsh itself: Mr.

Bosma’s position that courts may not determine which prayers are

sectarian was Justice Brennan’s view in his dissent in M arsh

. However, the Court found no difficulty in noting that the prayers in

that case were ecumenical. 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. 5

**B. Irreparable Injury and Other Factors**

As this case co

mes to us, the other main consideration in

deciding whether to grant a stay is the Speaker’s submission that

the House of Representatives over which he presides will be harmed

irreparably

in the absence of one. 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 distri ct 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 a nd does not “use

Christ’s name or title or any other deno minational appeal.”

Hinrichs v. Bosma

, 2006 WL 182601, at * 1 (S.D. Ind. Jan. 24, 2006).

Indeed, it appears that the legislative tradition is left intact by the

injunction. The House’s current practice is to ask clergy to “striveNos. 05-4604 & 05-4781 Page 17

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 appe a r, 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 Speaker responds in his

reply brief that “a suggestion to be respectful to those present in the

legislative setting is not remot e ly comparable to a binding federal

court injunction.” Appellant’s Reply Mem. at 5 (emphasis omitted).

He also suggests in an affidavit that the legislature ought not

entangle itself in the process of distinguishing between acceptable

nondenomin ational prayer and non-acceptable denominational

prayer. Although this claim certainly is deserving of more plenary

and respectful st udy 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.

The Speaker relies on two other cases to support his view that

courts of appeal shoul d grant stays in sensitive Establishment

Clause cases. In B ooks v. City of Elkhart

, 239 F.3d 826

(7th Cir.

2001) (Ripple, J., in chambers), this court stayed the mandate

pending certiorari after ruling unconstitutional a city’s display of a

six-foot by three-foot granite monument of the Ten Commandments

by itself outside the City Hall. But the removal of the monument--

whi ch this court stated in its merits opinion, B ooks v. City of

Elkhart

, 235 F.3d 292, 307–08 (7th Cir. 2000), would be a difficult,

sensitive, and time-consuming task--was a permanent undertaking.

Here, by contrast, the legislature must simply tolerate a temporary

interrup tion in permitting a type of prayer that, by its own

a dmission, is not the nondenominational type of prayer t hat itNos. 05-4604 & 05-4781 Page 18

desires. The Speaker also notes that the Eighth Circuit in Marsh

stayed the mandate pending certiorari, although there is no opinion

explaining its reasoning. But as the district court noted, the entry

of a stay under the circumstances here should not be surprising.

There was no Supreme Court authority on the issue of legislative

prayer at that time, and the Eighth Circuit’s decision in the

plai ntiffs’ favor presumably would have meant firing Nebraska’s

state-salaried chaplain. No such steps need be taken in this case.

Finally, the Speaker contends that any countervailing harm

to the plaintiffs is limited to the minuscule amount of tax dollars at

stake here. But this position is flatly contradicted by this court’s

case law. S ee City of St. Charles

, 794 F.2d at 274–75 (noting that

plaintiffs’ injury includes the harm of the putative Establishment

Clause violation). Here the harm to the plaintiffs is no less than a

denial of religious liberty in the form of a probable violation of the

First Amendment.

**Conclusion**

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.

MOTION DENIED

KANNE, Circuit Judge

, dissenting. Because I believe the

Speaker’s likelihood of success on the merits is greater than the

majority deems it, and the balancing of the equities favors granting

a stay, I respectfully dissent.Nos. 05-4604 & 05-4781 Page 19

The only time the Supreme Court considered the

constitutionality of legislative prayer it approved of the practice.

Marsh v. Chambers

, 463 U.S. 783 (1983). A key dispute in this case,

as it appears now, is whether Marsh rests on a line drawn between

sectarian and nonsectarian legislative prayer. While there is caselaw

supporting the prop

o sition that Marsh approves of only nonsectarian

legislative prayer, there still remain powerful arguments to the

contrary, not th e least of which is the M arsh majority’s curious

ambiguity on the point. Moreover, other factual differences may

drive the

ultimate ruling in this case. The nuanced nature of

Establishment Clause jurisprudence in general and the recognized

statu s of legislative prayer as holding its own unique place in our

nation’s history make it difficult, if not impossible, to say that the

Speaker lacks a significant probability of success on the merits.

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. S ee Elrod v. Burns, 427 U.S. 347, 373-74 n.29 (1976)

(emphasizing the importance of the timeliness of political speech in

conveying the intended message) (citations omitted); see also ACLU

v. City of St. Charles , 794 F.2d 265, 274 (7th Cir. 1986) (noting the

distinction between free speech and establishment of religion in

determining irreparable harm). This is also not a case where the

state is interfering with the plaintiffs’ ability to freely exercise their

religious beliefs. City of St. Charles

, 794 F.2d at 274. The potential

harm in th is case, assuming that the legislative prayer at issue is

unconstitutional, is a harm to the public in general: the erosion of

religious li berty and freedom that may arise due to a state’s

impermissible affiliation with religion. Id. at 275. Such a harm is

of the greatest impo

rtance–the Establishment Clause, of course,

represents a value held so h ighly by the Framers that it wasNos. 05-4604 & 05-4781 Page 20

included in the First Amendment. But it does not follow that the

religious freedoms we hold so dear will be irreparably injured in the

time that it takes this court, and possibly the United States Supreme

Court, to evaluate the constitutionality of Indiana’s legi slative

prayer . Any doubt on this issue is dispelled by the fact that the

Indiana General Assembly has been engaged in this prac tice for

nearly two centuries.

The harm which leads me to conclude that a stay should be

granted is also of a public nature. Federalism concerns demand that

we recognize the important interest the Indiana General Assembly

has in conducting its internal practice of legislative prayer

unfettered by a federal court’s injunction–even one narrowly drawn.

The injunction issued in this case covers a deeply rooted tradition

that “has become part of the fabric of our society.” M arsh , 463 U.S.

at 792. More to the point, this is a “special case” that deals with

another sovereign’s “internal spiritual practices.” V an Z andt v.

Thompson

, 839 F.2d 1215, 1219 (7th Cir. 1988). And as such, we

owe deference to

the Indiana General Assembly’s practice with

regard to legislative prayer. I d. ( explaining that Marsh reflects a

“degree of deference to the internal spiritual practices of another

.

. . sovereign”)

. That deference cautions that we as federal judges

should move prudently in this very sensitive area of constitutional

law, which includes being rel u ctant to interfere with a state’s

internal spiritual practices until it is clear that it is necessary.

Deferen ce 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.Nos. 05-4604 & 05-4781 Page 21

The legal uncertainty caused by the special place legislative

prayer holds in our nation’s heritage and our Establishment Clause

jurisprudence, the absence of irreparable harm, and the deference

due to another sovereign’s internal spiritual practices require that

we stay the district court’s injunction a t least until we can

determine for ourselves whether a constitutional viola tion has

occurred.