While former Speaker Brian Bosma has won this appellate round, a 2-1 panel of judges didn't touch the controversial merits of the case, and the case could still go to the United States Supreme Court.
The federal appellate court ruled today that plaintiffs who filed a suit against Bosma and the Indiana General Assembly for opening legislative sessions with a prayer do not have standing to sue. The court reversed and remanded Anthony Hinrichs, et al. v. Speaker of the House of Representatives of the Indiana General Assembly, Nos. 05-4604 and 05-4781.
Judges heard arguments from both sides in September 2006, which came following a November 2005 ruling by U.S. District Judge David Hamilton in the Southern District of Indiana that held invocations offered in the Indiana House of Representatives could not mention Jesus Christ or use Christian terms such as savior because they amount to state endorsement of a religion.
The American Civil Liberties Union of Indiana had sued in May 2005 on behalf of a retired Methodist minister, a lobbyist for a statewide Quaker group, and two Roman Catholics who objected to the practice of opening each legislative session with a prayer.
Circuit Judges Kenneth Ripple and Michael Kanne used those facts and relied on a plurality ruling by the U.S. Supreme Court earlier this year that offered guidance on when taxpayers can sue. That case was Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553 (2007).
In its decision, the Circuit judges noted that the legislative practice isn't mandated by statute. House Rule 10.2 merely provides that a prayer or invocation be given each meeting day before the House conducts any business. Plaintiffs weren't able to point to any specific amount of money spent on the practice and that other than costs related to broadcasting online, nothing spent was directly related to the content of the prayers provided.
In a 23-page dissent, Circuit Judge Diane Wood argued her colleagues overextended caselaw and denied plaintiffs a day in court.
"In my view, the taxpayer-plaintiffs before us have alleged enough to win the right to present their challenge to the House Prayer before a judicial forum," Judge Wood wrote, noting this case is about whether plaintiffs are entitled to a judicial determination of how certain legislative rules and practices violate the Establishment Clause of the First Amendment.
The majority judges didn't agree, though, noting, "We are well aware of the time and energy that the parties and the district court have expended on the merits of this matter."
Both sides have said previously that this case has the potential for an appeal to the nation's highest court; a decision on that could come in the next 90 days.