Hinrichs v. Bosma

• Decision Date: 24 January 2006
• Docket Number: No. 1:05 CV 0813 DFH TAB.,1:05 CV 0813 DFH TAB.
• Citation: 410 F.Supp.2d 745
• Parties: Anthony HINRICHS, et al., Plaintiffs, v. Brian BOSMA, in his official capacity as Speaker of the House of Representatives of the Indiana General Assembly, Defendant.
• Court: U.S. District Court — Southern District of Indiana

410 F.Supp.2d 745

Anthony HINRICHS, et al., Plaintiffs, v. Brian BOSMA, in his official capacity as Speaker of the House of Representatives of the Indiana General Assembly, Defendant.

No. 1:05 CV 0813 DFH TAB.

United States District Court, S.D. Indiana, Indianapolis Division.

January 24, 2006.

COPYRIGHT MATERIAL OMITTED

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

Thomas M. Fisher, Indiana State Attorney General, Indianapolis, IN, for Defendant.

ENTRY ON DEFENDANT'S MOTION TO STAY JUDGMENT PENDING APPEAL

HAMILTON, District Judge.

On November 30, 2005, the court entered its findings of fact and conclusions of law and issued a permanent injunction and declaratory judgment. Plaintiffs had shown that the official prayers to open sessions of the Indiana House of Representatives repeatedly and consistently advanced the beliefs that define the Christian 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 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); see also County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 602-05, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (legislative prayers in Marsh did not violate Establishment Clause "because the particular chaplain had `removed all references to Christ'"); id. at 630-31, 109 S.Ct. 3086 (O'Connor, J., concurring) (legislative prayer in Marsh did not violate Establishment Clause because both the long history and the "nonsectarian" character of the practice avoided conveying "a message of endorsement of particular religious beliefs"). On December 28, 2005, the court denied the defendant's motion to amend the judgment. Hinrichs v. Bosma, 2005 WL 3544300 (S.D.Ind. Dec.28, 2005).

On January 13, 2006, the defendant Speaker of the House of Representatives moved for a stay of this court's permanent injunction pending appeal. The injunction requires the defendant not to permit sectarian prayers to be offered as part of the official proceedings of the House of Representatives. The injunction gives the Speaker the constitutional option of continuing to permit non-sectarian prayers as part of the official proceedings. If he chooses to do so, the injunction requires him to advise all persons offering such prayers (a) that the prayers must be nonsectarian and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief, and (b) that the prayers should not use Christ's name or title or any other denominational appeal. The Speaker's motion papers indicate that he has chosen the option of not permitting any official prayers at all in the Indiana House while he pursues an appeal. The injunction does not apply, of course, to informal and unofficial gatherings of Members of the Indiana House or others who wish to join them in offering private and unofficial prayers.

As explained below, the court denies the motion for a stay pending appeal. 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. A stay would return the defendant's practices to the systematic official endorsement of one particular religion in violation of the plaintiffs' rights and the most basic principles of the First Amendment. The defendant also has not shown that he is likely to succeed on the merits of his appeal. Taxpayer standing is justified when plaintiffs identify, as they have in this case, specific public expenditures on the practice they challenge. On the merits, this court's decision is consistent not only with Marsh v. Chambers but with every other court decision that has addressed a practice of sectarian official prayer.

I. Standard for Stay Pending Appeal

Under Rule 62(c) of the Federal Rules of Civil Procedure, the district court may stay an injunction pending appeal. A Court of Appeals may grant such relief under Rule 8(a) of the Federal Rules of Appellate Procedure. Such a stay is considered "extraordinary relief" for which the moving party bears a "heavy burden." Winston-Salem/Forsyth County Board of Education v. Scott, 404 U.S. 1221, 1231, 92 S.Ct. 1236, 31 L.Ed.2d 441 (1971) (Burger, C.J., in chambers) (denying stay of school desegregation order).

The decision on a stay pending appeal is similar to the equitable decision to grant or deny preliminary injunctive relief. The court should consider (a) whether the appellant has shown a likelihood of success on appeal; (b) whether the appellant has demonstrated a likelihood of irreparable harm if a stay is not granted; (c) whether a stay would substantially harm other parties to the litigation; and (d) the public interest. Glick v. Koenig, 766 F.2d 265, 269 (7th Cir.1985) (affirming denial of stay pending appeal); accord, Indianapolis Colts v. Mayor & City Council of Baltimore, 733 F.2d 484, 486 (7th Cir.1984) (stay granted in part to allow parallel litigation to proceed and denied in part to allow football team to prepare to play in new city). In such cases, the district court tries to "minimize the costs of being mistaken." Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir.1992) (vacating denial of preliminary injunction). If the threat of irreparable harm is grave, a stay may be appropriate even if the appellant's prospects of success on the merits are not bright. Books v. City of Elkhart, 239 F.3d 826, 828 (7th Cir.2001) (Ripple, J., in chambers) (granting stay where both sides agreed it was appropriate); Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C.Cir.1985) (per curiam) (denying stay of issuance of license for low power testing at nuclear power plant).

II. Irreparable Harm and the Balance of Harms

The irreparable harm and balance of harm factors weigh heavily against a stay in this case. In evaluating the parties' arguments on harm if a stay is denied or granted, the court must compare two situations: the current situation under the injunction if a stay is denied, and a return to the House's prior practices if a stay is granted.

The Speaker reports that, to comply with the injunction, he and the House have "suspended official prayer in order to avoid interfering with individuals' consciences and discriminating among religious sects." He argues that the opening official prayer "has an important solemnizing effect on House proceedings, and the Court's Order directly interferes with the Speaker's ability to accommodate the religious needs of those who lead these prayers in service to the House." Def. Stay Mem. at 5. The Speaker contends the suspension of opening prayers is causing irreparable harm every day.

The Speaker's choice to suspend all official prayer is certainly constitutional, but it also is certainly not required by the court's injunction. The injunction allows the Speaker and the House to have official prayers if they wish to do so, so long as those prayers do not advance a particular religion and/or disparage others. At least some of the 2005 session's prayers in the record (admittedly a minority) fall squarely within the tradition of non-sectarian and inclusive public prayer approved in Marsh v. Chambers and the cases applying its principles. There is no indication that the Speaker or any other persons suffered harm from those prayers or that they were inadequate to serve the solemnizing effect described by the Speaker. Those prayers were also consistent with the Speaker's own admonitions to those offering prayers, which said: "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. The injunction is intended to make that request stronger and more effective, of course. But it is difficult to see how irreparable harm would result from strengthening the Speaker's own request for ecumenical prayers that take into account the different faiths of Members, staff, and constituents.

The Speaker's suggestion that the injunction causes discrimination among religious sects is groundless. This court has explained the reasons in detail in the original findings and conclusions, 400 F.Supp.2d at 1126, and in denying the motion to alter or amend the judgment, 2005 WL 3544300, at *5. In short, the injunction applies to sectarian prayer that advances any particular religion. The injunction is more specific as to prayers that advance the Christian faith because that has been the source of the Establishment Clause violation. There is no evidence that any official House prayers offered by non-Christians have ever been specific to those persons' religions, let alone that they have been so frequent and pervasive as to signal a government endorsement of a particular faith.

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. Any court order to the contrary would run counter to the First Amendment's Free...