Hinrichs v. Speaker of the Indiana House of Representatives, 05-4604 (7^th Cir., Oct. 30, 2007)

For 188 years, the Indiana House of Representatives has opened each session with an invocation. In recent years, the House has invited various clergy members to conduct the invocation as part of its “Minister of the Day”program. Although Jesus-believers tend to dominate, a rabbi and an imam have also delivered invocations. Even Buddha has been known to make an occasional appearance.

But using clergy members to open legislative sessions offended some Indiana citizens, and a handful decided to sue. They alleged that they had taxpayer standing to challenge the program based on the 54 cent mailings, 68 cent photo opportunities, and the 5 dollars or so of internet broadcasting costs associated with the Minister of the Day program. The total expenditure averages around $8.46 per prayer, which is paid from the state’s general operating funds.

The district court decided that the plaintiffs had standing and further held that the Minister of the Day program violated the Establishment Clause. Accordingly, the district court enjoined the Indiana legislature from beginning their sessions with sectarian prayer. Under the court’s order, the House could continue its invocations, but only if they were inclusive and did not advance any particular religion.

On appeal, a divided panel of the Seventh reverses on jurisdictional grounds. The Court concludes that a long line of Supreme Court cases from Flast to Hein prohibit this type of challenge to a general expenditure. If the Indiana legislature had set aside specific funds for the Minister of the Day program, then the taxpayers would have a basis to challenge the program. But because the incidental costs of the program are paid through general funds, the plaintiffs lack standing.

Judge Wood writes a strong dissent, which reads as a paean to taxpayer standing. She argues that religious freedom is at the heart of our society, but these freedoms cannot effectively be defended if the courts continue to chip away at the concept of standing. In particular, she thinks that the House Rule that authorizes the prayer gives the plaintiffs enough basis for a challenge, even though there is not a specific line item in the budget for the Minister of the Day program. Although the program may ultimately survive constitutional muster, she thinks it is a shame that the majority has shot down the only realistic way to resolve the issue on the merits.

Posted Tue, 30 Oct 2007 11:07:03 and filed under First Amendment, Decision of the Day. You can leave a response, or trackback from your own site.