Hinrichs v. Bosma

• Decision Date: 01 March 2006
• Docket Number: No. 05-4604.,No. 05-4781.,05-4604.,05-4781.
• Citation: 440 F.3d 393
• Parties: 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.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 393

440 F.3d 393

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.

No. 05-4604.

No. 05-4781.

United States Court of Appeals, Seventh Circuit.

March 1, 2006.^*

Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, IN, for Plaintiffs-Appellees.

Andrew Nichols, Winston & Strawn, Washington, D.C., Thomas M. Fisher, Office of the Attorney General, Indianapolis, IN, for Defendant-Appellant.

Before RIPPLE, KANNE and WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

This 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 proceedings 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 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.

I BACKGROUND

The facts in this case are not 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 sponsored by a state representative. Each guest cleric receives confirmation by mail of his temporary appointment; notably, the form letter states, "[w]e ask that you strive for an ecumenical prayer as our members, staff, and constituents come from different faith backgrounds." Hinrichs 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 Almighty God who has revealed Himself in the saving power of Jesus Christ." Id. at 12. The most dramatic example was a prayer followed by a rousing sing-along, led by that day's cleric, of the tune, "Just a Little Talk with Jesus." Id. at 14. Some legislators and members of the public stood and clapped in time as they sang; several legislators, however, left the House chamber, believing that the song was inappropriate. See Hinrichs, 400 F.Supp.2d at 1107.

The district 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 web-streaming (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 standing, 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, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), provided the controlling precedent, and that Marsh 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 ecumenical. In the district court's view, Marsh 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 discretion standard and its legal 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. See 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 injure the opposing party and will be in the public interest. See Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987).

A. Likelihood of Success on the Merits

1. Standing

The Speaker first contends that he will prevail on the merits of the appeal 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 taxes and that the use of those monies exceeds a specific constitutional 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, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Flast v. Cohen, 392 U.S. 83, 102-03, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Metzl v. Leininger, 57 F.3d 618, 619 (7th Cir.1995). This is true even if the amounts in question are piddling. See United States v. SCRAP, 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Lynch v. Donnelly, 465 U.S. 668, 671, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (involving expenditure of $20 per year to erect creche); American Civil Liberties Union v. City of St. Charles, 794 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. Hinrichs, 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 not 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 decision in Freedom 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 Freedom 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...