Hinrichs v. Bosma

Decision Date30 November 2005
Docket NumberNo. 105CV0813DFHTAB.,105CV0813DFHTAB.
Citation400 F.Supp.2d 1103
PartiesAnthony HINRICHS, et al., Plaintiffs, v. Brian BOSMA, in his official capacity as Speaker of the House of Representatives of the Indiana General Assembly, Defendant.
CourtU.S. District Court — Southern District of Indiana

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

Thomas M. Fisher, Indiana Solicitor General, Indianapolis, IN, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HAMILTON, District Judge.

Four Indiana residents and taxpayers have sued the Speaker of the House of Representatives of the Indiana General Assembly. They allege that most of the prayers the Speaker has permitted to open House sessions are sectarian Christian prayers, in violation of the Establishment Clause of the First Amendment to the United States Constitution. Such prayers are deemed government speech for purposes of applying the Establishment Clause. Plaintiffs bring this action under 42 U.S.C. § 1983.

With the consent of the parties, the court consolidated the trial on the merits with the hearing on plaintiffs' request for a preliminary injunction. The trial held on October 28, 2005 was devoted to argument on stipulated facts and written submissions of evidence. The court now states its findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

To summarize, 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 clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.'" County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 605, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), quoting Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). 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, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (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.

Findings of Fact
I. The Indiana House of Representatives Prayers

Indiana's legislative authority is vested in the Indiana General Assembly, composed of the Senate and the House of Representatives. Ind. Const. art. IV, § 1. The House of Representatives consists of up to 100 members and meets in the Indiana Statehouse. The House meets in the chamber of the Statehouse, which has seating for the Representatives and an observation gallery for about 75 to 100 members of the public.

House Rule 10.2 calls for a prayer or invocation prior to conducting business each meeting day. The Indiana House of Representatives has opened each meeting day with an invocation for the last 188 years. Jt. Stip. Facts (First) ¶ 28. The invocation takes place after the Speaker of the House gavels the House to order and before the Pledge of Allegiance is recited. Id. ¶ 1. It is delivered from the Speaker's stand. Id. ¶ 4. Under House rules, no one may enter the Speaker's stand except at the invitation of the Speaker. Id. ¶ 5; Cplt. Ex. 1 (Rule 15).

The invocation is frequently delivered by a religious cleric. Jt. Stip. Facts (First) ¶ 2. When no cleric is present, the invocation has been delivered by a Representative. Id. ¶ 16. The cleric for a particular day is nominated by a Representative who completes a "Minister of the Day" form specifying when the cleric is available. Id. ¶ 3; see Jt. Ex. 18. The Representative submits the form to the Majority Caucus Chair, who then schedules the cleric to deliver the invocation. Jt. Stip. Facts (First) ¶ 3.

Once scheduled, the cleric receives a confirmation letter by mail. Id. ¶ 6; see Jt. Ex. 19. This letter states in part: "The invocation is to be a short prayer asking for guidance and help in the matters that come before the members. We ask that you strive for an ecumenical prayer as our members, staff and constituents come from different faith backgrounds." Jt. Ex. 19. Neither the Speaker nor anyone else associated with the House provides any further guidance to the cleric as to the nature of the invocation. Jt. Stip. Facts (First) ¶ 7; Bosma Aff. ¶¶ 15, 16. Representatives receive no instruction as to the nature of the invocation. Jt. Stip. Facts (First) ¶ 17.

When a Representative gives the invocation, there are no expenses for the invocation other than the normal expenses associated with operating the House. Id. ¶ 18. Additional modest expenses are incurred, however, when a cleric delivers the invocation. All of these costs are paid from state taxpayer funds appropriated by the Indiana General Assembly. Id. ¶ 31. The cost of mailing the confirmation letter is $0.54 per mailing. Id. ¶ 6. After the cleric has delivered the invocation, he or she may receive a thank-you letter by mail. Id. ¶ 11; see Jt. Ex. 21. The cost of this is also $0.54 per mailing. Jt. Stip. Facts (First) ¶ 11.

In addition, constituents and other persons can have their photographs taken with Representatives before the meeting begins, and these photographs cost $0.68 each to print. Id. ¶ 8. During the 2005 legislative session, the staff photographer took photographs of a number of clerics who delivered the opening prayers. Id. ¶ 10. The records show that 11 photographs of clerics were taken in 2005, but it is possible that there were more. Id. ¶ 10; see Jt. Ex. 20. When a photograph of a cleric has been taken, the usual practice is for the House staff to mail it with the thank-you letter. Jt. Stip. Facts (First) ¶ 12. If a photograph is sent along with the letter, the cost per mailing increases to $1.60. Id. ¶ 13.

In 2005, each meeting of the House session was recorded and made available as streaming video on the Internet. Id. ¶ 19. To ensure that the video equipment was working properly, the streaming video would begin several minutes prior to the invocation. Id. ¶ 26. The streaming video for each invocation in 2005 was "a few minutes in length." Id. ¶ 25. The cost for the streaming video in 2005 was $112.85 per hour, or $1.88 per minute. Id. ¶ 23. Streaming video of future meetings will also be made available on the Internet. Id. ¶ 19.

Speaker Brian Bosma has been a member of the Indiana House of Representatives since 1986. Bosma Aff. ¶ 4. He was elected by House members to serve as Speaker of the House on November 16, 2004. Id. ¶ 5. As Speaker, he does not routinely participate in selecting the cleric to perform the invocation, and he typically does not know the identity or faith of the cleric until minutes before he introduces the cleric. Id. ¶¶ 12, 13. He is not informed in advance what the cleric or Representative will say in the invocation. Id. ¶ 14. Under House Rules, however, the Speaker has authority over the general direction of the chamber, and, as noted, no one may enter the Speaker's stand without his permission. See Cplt. Ex. 1 (Rule 20.1, Rule 15).

Fifty-three opening prayers were offered in the House during the 2005 legislative session. See Jt. Ex. 23. Forty-one of those invocations were delivered by clergy identified with Christian churches; nine were delivered by Representatives; and one each was delivered by a lay person, a Muslim imam, and a Jewish rabbi. Transcripts are available for forty-five prayers. Of these, twenty-nine were offered in the name of Jesus, Jesus Christ, the Savior, and/or the Son. In the majority of these invocations, the officiant did not indicate that he or she was personally praying in the name of Jesus or Christ. Id. Some officiants explicitly stated that the prayer was offered for all those assembled or for persons other than the legislative body. Id.

The substantial majority of prayers offered during the 2005 session were explicitly Christian in content. Several examples illustrate the point. The prayer of January 4th concluded: "In the Strong name of Jesus our Savior, Amen." Jt. Ex. 23 at 1. The next session, the prayer concluded: "And Lord God, we come before You because [of] what you have done for us through Your Son Jesus Christ. It is in his name we do pray. Amen." Id.1 The January 19th prayer concluded: "We ask You to bless these leaders in the name of Jesus, Your Son, and our Lord who reigns forever and ever. Amen." Id. at 3.

The prayer for February 28th began with six verses from Paul's letter to the Colossians, including this passage:

Let the peace of Christ rule in your hearts, to which indeed you were called in one body; and be thankful. Let the word of Christ richly dwell within you, with all wisdom teaching and admonishing one another with psalms and hymns and spiritual songs, singing with thankfulness in your hearts to God. Whatever you do in word or deed, do all in the name of the Lord Jesus, giving thanks through him to God the Father.

Colossians 3:15-17. The prayer concluded: "I know that You have heard my prayer, and I know that Your precious Son promised that whatever we asked of You in Your holy name [You] will provide. I ask for all these things in Your Son's most holy name." Jt. Ex. 23 at 7-8. The prayer of March 22nd ended:

And for those who have lost family members in the current and persistent conflicts of the world, we ask that You would...

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4 cases
  • Hinrichs v. Bosma
    • United States
    • U.S. District Court — Southern District of Indiana
    • January 24, 2006
    ...religion, in violation of the Establishment Clause of the First Amendment to the United States Constitution. Hinrichs v. Bosma, 400 F.Supp.2d 1103, 1104 (S.D.Ind. 2005). The sectarian content of the substantial majority of official prayers in the Indiana House took the prayers outside the s......
  • Pelphrey v. Cobb County, Ga.
    • United States
    • U.S. District Court — Northern District of Georgia
    • January 13, 2006
    ...reference or explicitly identifies the deity to whom the speaker directs his or her prayer. See Wynne, 376 F.3d at 301; Hinrichs, 400 F.Supp.2d 1103, 1125-28;15 see also Stein, 822 F.2d at After carefully considering the matter, the Court cannot accept the latter courts' reading of Marsh an......
  • Hinrichs v. Bosma
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • March 1, 2006
    ...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 participat......
  • Schroeder v. Bosma
    • United States
    • U.S. District Court — Southern District of Indiana
    • November 8, 2011
    ...one against permitting sectarian prayer as part of the official proceedings of the Indiana House of Representatives. Hinrichs v. Bosma, 400 F.Supp.2d 1103 (S.D.Ind. 2005). The plaintiff seeks the immediate removal of the mural, named The Spirit of Indiana, because a portion of it allegedly ......
3 books & journal articles
  • Ira C. Lupu & Robert W. Tuttle, Federalism and Faith
    • United States
    • Emory University School of Law Emory Law Journal No. 56-1, 2006
    • Invalid date
    ...372 Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962). 373 Cf. Hinrichs v. Bosma, 400 F. Supp. 2d 1103 (S.D. Ind. 2005) (enjoining the use of explicitly Christian prayers to open sessions of the State House of Representatives). Hinrichs was de......
  • "unity Through Division": Religious Liberty and the Virtue of Pluralism in the Context of Legislative Prayer Controversies
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 43, 2022
    • Invalid date
    ...prayer policy despite evidence of exploitation of the prayer opportunity or "proselytizing or disparaging" prayer); Hinrichs v. Bosma, 400 F. Supp. 2d 1103 (S.D. Ind. 2005), stay denied , 440 F.3d 393 (7th Cir. 2006), rev'd sub nom , Hinrichs v. Speaker of the House of Representatives of th......
  • Varied Carols: Legislative Prayer in a Pluralist Polity
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 40, 2022
    • Invalid date
    ...1991) (prohibiting state judge's practice of opening court sessions with prayer invoking "our Father in Heaven"); Hinrichs v. Bosma, 400 F. Supp. 2d 1103 (S.D. Ind. 2005) (stating Indiana House of Representatives violated Establishment Clause by having sessions opened with prayers that freq......

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