Hinrichs v. Speaker of House of Representatives, 05-4604.

• Decision Date: 30 October 2007
• Docket Number: No. 05-4781.,No. 05-4604.,05-4604.,05-4781.
• Citation: 506 F.3d 584
• Parties: Anthony HINRICHS, Henry Gerner, Lynette Herold, et al., Plaintiffs-Appellees, v. SPEAKER OF the HOUSE OF REPRESENTATIVES OF the INDIANA GENERAL ASSEMBLY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

506 F.3d 584

Anthony HINRICHS, Henry Gerner, Lynette Herold, et al., Plaintiffs-Appellees, v. 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.

Argued September 7, 2006.

Decided October 30, 2007.

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

Steffen N. Johnson (argued), Winston & Strawn, Washington, DC, Thomas M. Fisher, Office of the Attorney General, Indianapolis, IN, for Defendant-Appellant.

Mathew D. Staver, Anita L. Staver, Liberty Counsel, Maitland, FL, Eric W. Stanley, Rena M. Lindevaldsen, Lynchburg, VA, Amicus Curiae.

Gregory M. Jones, Foundation for Moral Law, Inc., Montgomery, AL, Amicus Curiae.

Michael D. Dean, Dean & McKoy, Waukesha, WI, Amicus Curiae.

Anthony R. Picarello, Jr., Becket Fund for Religious Liberty, Washington, DC, Amicus Curiae.

James Bopp, Jr., Bopp, Coleson & Bostrom, Terre Haute, IN, Amicus Curiae.

Aaron Van Oort Faegre & Benson, Minneapolis, MN, Amicus Curiae.

Lowell Sturgill (argued), Dept. of Justice, Civil Rights Div., Appellate Sec., Washington, DC, Amicus Curiae.

Steven W. Fitschen, Nat. Legal Foundation, Virginia Beach, VA, Amicus Curiae.

Barbara J. Weller, Gibbs Law Firm, Seminole, FL, Amicus Curiae.

Jonathan K. Baum, Katten Muchin Rosenman, Chicago, IL, Amicus Curiae.

Before RIPPLE, KANNE and WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Four Indiana taxpayers, Anthony Hinrichs, Henry Gerner, Lynette Herold and Francis White Quigley, brought this action against the Speaker of the House of Representatives of the Indiana General Assembly, challenging the House's practice of opening each session with a prayer. The district court agreed with the plaintiffs that the practice of legislative prayer as implemented by the House violated the Establishment Clause and issued a permanent injunction. The Speaker timely appealed and sought a stay of the district court's ruling pending full briefing before this court. We denied the stay but noted that our decision was based only on a preliminary understanding of the facts surrounding Indiana's practice. See Hinrichs v. Bosma, 440 F.3d 393 (7th Cir.2006). After briefing, oral argument and supplemental briefing, we now hold that the plaintiffs do not have standing to maintain this action. We therefore reverse the district court's judgment and remand the action with instructions to dismiss for want of jurisdiction.

I BACKGROUND

A. Facts

Indiana's legislative authority is vested in the Indiana General Assembly, which is composed of the Senate and the House of Representatives. The House of Representatives meets in its chamber in the Indiana 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 to be given each meeting day before the House conducts any business. For the 188 years prior to the time the plaintiffs instituted this action, the Indiana House of Representatives opened each day with an invocation. The invocation occurs immediately after the Speaker's call to order. No legislative business takes place until the prayer is finished, and no one is required to remain in the House chamber during the prayer.¹ The invocation is delivered from the Speaker's stand, and, according to House rules, no one may enter the Speaker's stand without invitation from the Speaker.

The invocation frequently is delivered by visiting clergy who have volunteered to pray and are nominated by a representative. On occasion, representatives have sponsored clergy who do not share their own religious affiliation. To nominate a member of the clergy, a representative fills out a "Minister of the Day" form setting forth the dates when the clergy member is available. The representative then submits the form to the Majority Caucus Chair, who schedules the cleric to deliver the invocation. No minister who has requested sponsorship ever has been turned down.

Prior to the date on which the visiting clergy member is to offer the invocation, a House staff member sends a letter setting forth the logistical details of the visit. The letter also states:

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. Thank you for your consideration.

R.16, Att. 2. No further guidance is provided and no review of the content of the prayer is conducted prior to its being given; typically, the Speaker does not know the identity of the minister until a few minutes prior to his or her introduction.²

When a visiting clergy member has not been designated to give the prayer for a legislative session, a representative has given the invocation. On such an occasion, the representative does not receive guidance from anyone associated with the House concerning the form or content of the prayer. No one associated with the House ever has advised, corrected or admonished a minister or representative about the religious content of an invocation.

During the 2005 House session, the invocation was delivered by priests, Protestant ministers, several representatives, a rabbi and an imam. Of the forty-five prayers offered during this session for which text is available, twenty-nine prayers referenced "Jesus" or "Christ"; others invoked "God," "Lord," "Almighty God," or "Heavenly Father." Id. Att. 6 at 3, 7 (prayers of January 10 and 13, 2005 and February 17, 2005). At least one prayer was not addressed to a specific deity. See id. at 16-17 (prayer of April 14, 2005).

Several prayers were overtly Christian in content. For instance, one visiting cleric quoted several verses from a book of the New Testament as part of his prayer, see id. at 8 (prayer of February 28, 2005); still others referred to the "saving power of Jesus Christ," id. at 13 (prayer of March 28, 2005), to "our lord and savior Jesus Christ," id. at 14 (prayer of April 5, 2005), or to Jesus Christ as the son of God, id. at 16 (prayer of April 11, 2005). Many of these references were limited to the doxology at the end of the prayer. There also were invocations given that were not tied to any specific faith or denomination. For instance, the prayer offered on April 14, 2005, referenced Buddha, the Zen masters, a philosopher and a story from the Bible. See id. at 16-17. Still others invoked only "God" or "Lord" and simply requested wisdom for the Assembly or blessings for the State. See, e.g., id. at 18 (prayer of April 19, 2005); id. at 14 (prayer of March 31, 2005). Some prayers were offered as the personal prayer of the clergy member, see, e.g., id. at 14-15 (prayer of April 5, 2005); others purported to be offered on behalf of those assembled, see, e.g., id. at 17 (prayer of April 18, 2005).

Although minimal, there were costs associated with the practice of offering the invocation. The initial letter sent to clergy cost $.54 per mailing. Before a session commenced, the House members sometimes took photographs with the clergy scheduled to give the invocation. These photographs cost $.68 per print and were mailed at a cost of $1.60 per print. A thank-you letter sometimes was sent to visiting clergy, also at a cost of $.54 per mailing. Additionally, the sessions of the Indiana House are broadcast on the Internet at a cost of $112.85 per hour, or $1.88 per minute; each prayer, whether offered by a member of the clergy or by a representative, lasted a few minutes. All funds used to cover these costs came from the general budget; no funds were appropriated specifically to cover these expenses.

B. District Court Proceedings

On May 31, 2005, four Indiana taxpayers, Anthony Hinrichs, Henry Gerner, Lynette Herold and Francis White Quigley, brought this action for declaratory and injunctive relief challenging the existing practice of the Indiana House of Representatives to allow sectarian prayers to be given prior to each legislative session. The Speaker of the House of Representatives of the Indiana General Assembly was named as the defendant. In the complaint, the plaintiffs stated that they did not object to the practice of legislative prayer, but claimed that the practice of the Indiana House of Representatives violated the First Amendment because it allowed overtly sectarian prayers to be offered. The Speaker answered the complaint and, among other matters, asserted lack of standing.

On October 28, 2005, the district court conducted a trial on stipulated facts and written submissions of the parties. On November 30, 2005, the district court entered a final order declaring the Speaker's practice of allowing sectarian prayer to be violative of the Establishment Clause and permanently enjoining the Speaker from "permitting sectarian prayers to be offered as part of the official proceedings of the House of Representatives." R.31 at 1.³ The district court first addressed the Speaker's contention that the plaintiffs lacked standing to bring this action. In the district court's view, the plaintiffs had established taxpayer standing under the Supreme Court's and this court's case law. It stated:

In this case the House's prayer practice is indeed paid for by taxpayer funds, through confirmation and thank-you letters and photographs sent to clergy, and additional web-streaming time. Though these costs are not directly attributable to the content of the invocations, they are directly attributable to the practice of legislative prayer that plaintiffs challenge. Because the plaintiffs are Indiana taxpayers who have proven "a measurable appropriation or disbursement of [public] funds occasioned solely by the activities complained of," Doremus [v. Board of Education], 342 U.S. [429,] 434, 72 S.Ct. 394, 96 L.Ed. 475 [(1952)], all four plaintiffs have standing...