                In the
    United States Court of Appeals
       For the Seventh Circuit
                           _______________

Nos. 05-4604 & 05-4781

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.
                           _______________

           Appeals from the United States District Court
                for the Southern District of Indiana,
                        Indianapolis Division.
           No. 05 C 813 –– David F. Hamilton, Judge.
                          _______________

                        MOTION FOR STAY

                           MARCH 1, 2006*
                           _______________



      *
          This opinion is being released initially in typescript form.
Nos. 05-4604 & 05-4781                                         Page 2

       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
Nos. 05-4604 & 05-4781                                        Page 3

       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
Nos. 05-4604 & 05-4781                                          Page 4

the House chamber, believing that the song was inappropriate. See
Hinrichs, 400 F. Supp. 2d at 107.

       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 (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
Nos. 05-4604 & 05-4781                                          Page 5

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 (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 (1982); Flast v. Cohen, 392 U.S. 83, 102–03
(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 (1973); Lynch v. Donnelly, 465
U.S. 668, 671 (1984) (involving expenditure of $20 per year to erect
creche); American Civil Liberties Union v. City of St. Charles, 794
Nos. 05-4604 & 05-4781                                          Page 6

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 standing to challenge practices “that do not involve
expenditures”:

       Imagine a suit complaining that the President was violating
       the [Establishment] [C]lause by including favorable
       references to religion in his State of the Union address. The
Nos. 05-4604 & 05-4781                                         Page 7

       objection to his action would not be to any expenditure of
       funds for a religious purpose; and though an accountant
       could doubtless estimate the cost to the government of the
       preparations, security arrangements, etc., involved in a State
       of the Union address, that cost would be no greater merely
       because the President had mentioned Moses rather than
       John Stuart Mill. In other words, the marginal or
       incremental cost to the taxpaying public of the alleged
       violation of the establishment clause would be zero.

Id.

        Read in context, this passage appears simply to repeat the rule
that taxpayers who cannot trace a challenged practice to any
expenditure are without standing. If we were to accept the
Speaker’s argument as presented at this stage of the litigation, any
time an unconstitutional practice could be replaced at no cost with
a constitutional one, those asserting taxpayer standing would be
powerless to challenge it. The Speaker has yet to respond
persuasively to the district court’s criticism that acceptance of such
a rule would mean that taxpayers are without standing to challenge
the erection of a large stone cross on public land if it theoretically
could be replaced with a secular monument of the same price. Such
a theory misapprehends the purpose of taxpayer standing: The true
injury is whether the plaintiff’s tax dollars are being spent in an
illegal manner. Such an injury is redressed not by giving the tax
money back, see D.C. Common Cause v. District of Columbia, 858
F.2d 1, 5 (D.C. Cir. 1988) (“The Supreme Court has never required
state or municipal taxpayers to demonstrate that their taxes will be
reduced as a result of a favorable judgment.”); cf. Freedom From
Religion Foundation, 433 F.3d at 990 (noting that the tangible harm
of most unconstitutional spending practices is zero, because instead
of returning the taxes that support the practices, the government
spends the money elsewhere), but by ending the unconstitutional
Nos. 05-4604 & 05-4781                                        Page 8

spending practice. More to the point, the “marginal cost” statement
in Freedom From Religion Foundation is dictum in its purest form:
It occurs in a discussion of a hypothetical that illustrates a point
peripheral to the case at hand. Id. It therefore is not binding
authority. Cent. Green Co. v. United States, 531 U.S. 425, 431
(2001).1

      We therefore must conclude that the Speaker is unable to
show a substantial likelihood of success on the merits of his standing
argument.


2. Establishment Clause

       The Supreme Court has addressed the constitutionality of
legislative prayer only once. See Marsh v. Chambers, 463 U.S. 783,
791-95 (1983). In that case, a state legislator and taxpayer


      1
          The other cases cited by the Speaker do not even arguably
create a “marginal cost” requirement. Rather, they simply
demonstrate that individuals who cannot trace the challenged
practice to tax dollars cannot enjoy taxpayer standing. See Doremus
v. Bd. of Educ., 342 U.S. 429, 434–35 (1952) (no taxpayer standing
to challenge classroom readings of the Bible because no showing that
tax dollars fund the practice); Gonzales v. North Township of Lake
County, 4 F.3d 1412, 1416 (7th Cir. 1993) (no taxpayer standing to
challenge crucifix in public park because it was donated); Friedman
v. Sheldon Cmty. Sch. Dist., 995 F.2d 802 (8th Cir. 1993) (no
taxpayer standing to challenge benediction at high school graduation
because no showing that tax funds supported it); Freedom from
Religion Found. v. Zielke, 845 F.2d 1463, 1470 (7th Cir. 1988) (no
municipal taxpayer standing to challenge donated Ten
Commandments monument).
Nos. 05-4604 & 05-4781                                         Page 9

challenged the Nebraska legislature’s practice of offering a brief
prayer, conducted by a staff chaplain whose salary was paid from tax
funds, before the start of official business each day. The Supreme
Court upheld the practice. The Court analyzed the issue largely
based on considerations of history and tradition. Noting the
contemporaneous writing of the First Amendment and the
establishment of legislative prayer in Congress, the Supreme Court
stated that the Framers would not have established a practice that
violated their understanding of the constitutional amendment that
they just had composed. The opinion holds that the practice of
legislative prayer is “simply a tolerable acknowledgment of beliefs
widely held among the people of this country.” Id. at 792.

        After approving the practice in general terms, the Court
proceeded to discuss whether particular features of Nebraska’s
invocations were constitutionally problematic. It noted in a footnote
that the prayers were “nonsectarian” and “Judeo Christian,” and
that, “[a]lthough some of [the chaplain’s] earlier prayers were often
explicitly Christian, [he] removed all references to Christ after a
1980 complaint from a Jewish legislator.” Id. at 793 n.14. In the
text of the opinion, the Court concluded: “The content of the prayer
is not of concern to judges where, as here, there is no indication that
the prayer opportunity has been exploited to proselytize or advance
any one, or to disparage any other, faith or belief.” Id. at 794–95.

          In the case now before us, the plaintiffs contend, and the
district court held, that the consistent and pervasive use of Christian
invocations in Indiana is the sort of practice that Marsh found
unacceptable. It is a “prayer opportunity [that] has been exploited
to . . . advance . . . one . . . faith or belief.” Id.

       The principal thrust of the Speaker’s Establishment Clause
claim here turns on whether this passage in Marsh should be read
as limiting constitutionally acceptable prayer to nonsectarian prayer.
Nos. 05-4604 & 05-4781                                       Page 10

In the Speaker’s view, this language is dictum, and Marsh does not
establish a line between permissible nonsectarian legislative prayer
and impermissible sectarian legislative prayer. This reading would
appear to minimize the Supreme Court’s efforts to give guidance on
this critical question. Moreover, his position has been rejected by
the Supreme Court, as well as many lower federal courts and state
courts. Few cases have confronted squarely the constitutionality of
sectarian legislative prayer, but, notably, those cases have concluded
that Marsh prohibits the practice.

        Most importantly, the Supreme Court itself has read Marsh
as precluding sectarian prayer. In County of Allegheny v. American
Civil Liberties Union, 492 U.S. 573 (1989), the Supreme Court held
unconstitutional the display of a creche in a county courthouse.
Justice Kennedy’s dissent for four members of the Court maintained
that, if legislative prayer was permissible under Marsh, then surely
the creche was also constitutional. Id. at 665 & n.4 (Kennedy, J.
dissenting). Justice Blackmun’s majority opinion replied:

      Indeed, in Marsh itself, the Court recognized that not even
      “the unique history” of legislative prayer can justify
      contemporary legislative prayers that have the effect of
      affiliating the government with any one specific faith or
      belief. The legislative prayers involved in Marsh did not
      violate this principle because the particular chaplain had
      “removed all references to Christ.” Thus, Marsh plainly does
      not stand for the sweeping proposition Justice Kennedy
      apparently would ascribe to it, namely, that all accepted
      practices 200 years old and their equivalents are
      constitutional today.

Id. at 603 (internal citations omitted); see also id. at 604 n.53
(noting that a Governor’s preference for Christianity and
discrimination against all non-Christians in his Thanksgiving
Nos. 05-4604 & 05-4781                                         Page 11

proclamation is the “very evil” against which the Establishment
Clause is meant, in part, to protect). Furthermore, Justice
O’Connor, in her separate opinion, emphasized that both the
longstanding existence of legislative prayer and its “nonsectarian
nature” in Marsh led her to conclude that the practice did not
violate the First Amendment. Id. at 630–31 (O’Connor, J.,
concurring).

        The only other Supreme Court case that meaningfully
elucidates Marsh is Van Orden v. Perry, 125 S. Ct. 2854 (2005). In
that case, which approved a monument of the Ten Commandments
at the Texas capitol, the Court discussed cases that recognized the
role of God in American heritage. It cited Marsh, and in a footnote
suggested that the challenge to Nebraska’s legislative prayer may
have been rejected because the prayers were nonsectarian: “In
Marsh, the prayers were often explicitly Christian, but the chaplain
removed all references to Christ the year after the suit was filed.”
Id. at 2862 n.8.

        We never have addressed the constitutionality of legislative
prayer, but we have read Marsh as hinging on the nonsectarian
nature of the invocations at issue there. See Doe v. Vill. of
Crestwood, 917 F.2d 1476, 1479 (7th Cir. 1990) (striking down
town’s “Touch of Italy” festival that included a Roman Catholic mass
and stating that Marsh approved a “non-denominational” prayer);
Van Zandt, 839 F.2d at 1218-19 (noting that in Marsh the chaplain
removed references to Christ and there was no evidence that the
prayers were exploited to proselytize or advance one religion); City
of St. Charles, 794 F.2d at 271 (striking down city’s display of a large
lighted cross and citing Marsh for proposition that “conventional
nonsectarian public invocations of the deity” are permissible).

       Other circuits, however, have confronted the question of
sectarian legislative prayer directly, and their decisions are
Nos. 05-4604 & 05-4781                                       Page 12

consistent with the district court’s conclusion. Most recently, the
Fourth Circuit relied upon Marsh to resolve two cases involving
legislative prayer. In Wynne v. Town of Great Falls, 376 F.3d 292
(4th Cir. 2004), the court struck down a town’s practice of opening
city council meetings with prayers that closely resembled the
majority of prayers in this case: brief offerings that ended with
supplications like, “In Christ’s name we pray.” Id. at 294. The
court placed great reliance on Marsh’s limitation to nonsectarian
prayer and its warning that prayer that advances a particular
religion is impermissible; it also discussed at some length the
Court’s subsequent interpretation of Marsh in Allegheny County.
See id. at 297–301. The court concluded that the Christian prayers
at issue violated the rule of these two cases by “affiliat[ing]” the
government with the Christian religion. Id. at 300. A second case,
Simpson v. Chesterfield County Board of Supervisors, 404 F.3d 276
(4th Cir. 2005), reaffirms Wynne’s reading of Marsh and Allegheny
County and holds that a local board’s nonsectarian prayers were
permissible under those cases.

       The Ninth Circuit faced a similar issue in Bacus v. Palo Verde
Unified School District Board of Education, 52 Fed. App’x 355 (9th
Cir. 2002) (unpublished order).2 There, the court struck down a
school board’s practice of sectarian invocations at official meetings,
which ended “in the Name of Jesus.” Id. at 356-57. The court
deliberated over whether school board prayer should be analyzed
under Marsh or under school prayer cases; it ultimately did not have
to decide this issue, holding that the practice would even violate the
more lenient Marsh doctrine. Id. at 356. According to that court,
the overtly Christian prayers were an inappropriate effort to
“advance” Christianity, in Marsh’s terms, and showed the


      2
         See Ninth Cir. R. 36-3(b) (prohibiting citation to
unpublished orders by courts within the Ninth Circuit).
Nos. 05-4604 & 05-4781                                      Page 13

government’s “allegiance” to that faith, in Allegheny County’s. Id.
at 357.3

        The Speaker invites our attention to two circuit cases to
support his more limited reading of Marsh to mean that all
legislative prayer is constitutionally permissible. In Murray v.
Buchanan, 720 F.2d 689 (D.C. Cir. 1983) (en banc) (per curiam), the
court dismissed an appeal challenging Congress’ policy of opening its
meetings with a prayer by a paid chaplain; the appeal was pending
at the time Marsh was decided. This per curiam opinion simply
notes that Marsh approved legislative prayer by a paid chaplain, and
so the identical challenge regarding Congress’ practice did not raise
“a substantial constitutional question.” Id. at 690. Although the
Speaker contends that Congress itself uses sectarian prayers, and
that Murray thus implicitly approved the practice, that opinion does
not mention or rely upon the content of the prayers. In addition to
the D.C. Circuit in Murray, several courts have heard challenges to




      3
         A similar case in the Sixth Circuit also deserves mention.
In Stein v. Plainwell Community Schools, 822 F.2d 1406 (6th Cir.
1987), the Sixth Circuit struck down the overtly Christian
invocations and benedictions used at two Michigan high school
graduation ceremonies. Relying on Marsh to find that prayer in
such settings may in some cases be permissible--a view that the
Supreme Court later rejected in Lee v. Weisman, 505 U.S. 577
(1992)--the court held that Marsh strictly prohibited the sectarian
prayers at the commencements, or at any other solemnizing
occasions. Stein, 822 F.2d at 1408–09; see id. at 1410 (Milburn, J.
concurring). While the decision’s broad holding is thus no longer
good law, Stein remains valuable for its interpretation of Marsh.
Nos. 05-4604 & 05-4781                                       Page 14

Congress’ practice of legislative prayer. However, none of these
cases turns on the content of the prayer.4

       The Speaker also relies upon Snyder v. Murray City Corp.,
159 F.3d 1227 (10th Cir. 1998) (en banc), in which the court upheld
a city’s refusal to let a particular citizen make an aggressive
invocation that derided legislative prayer and Christianity generally.
The court held that such an invocation would directly conflict with
Marsh’s prohibition against prayer that “proselytize[s]” or
“disparage[s]” a particular “faith or belief.” Id. at 1234. The court
then offered its view of Marsh’s limitations generally, stating that
prayer that proselytizes or “aggressively advocates” one religion is
prohibited; approved prayer, by contrast, “although often taking the
form of invocations that reflect a Judeo-Christian ethic, typically


      4
          One of these cases was resolved on standing grounds, see
Kurtz v. Baker, 829 F.2d 1133 (D.C. Cir. 1987), and another simply
tracks Murray to reject a generic challenge to the practice of
legislative prayer by a paid chaplain, see Newdow v. Eagan, 309 F.
Supp. 2d 29, 40-42 (D.D.C. 2004). A related case, Newdow v. Bush,
355 F. Supp. 2d 265, 288–90 (D.D.C. 2005), aff’d No. 05-5003, 2005
WL 89011 (D.C. Cir. Jan. 16, 2005) (unpublished order), rejects an
attempt to enjoin the invocation at the 2005 presidential
inauguration, but does not rely on the sectarian nature of the
invocation, because the content of the prayer was not made known
in advance. (The court’s discussion of this issue gives the
impression of an attempt to avoid the difficult issue of sectarian
prayer at the inauguration.) In sum, these cases either do not
discuss or rely on the sectarian nature of congressional prayer.
Should a court decide a case squarely confronting that issue, such a
case would be important authority in deciding the Indiana dispute
here, but until that time, the question of congressional prayer is not
relevant.
Nos. 05-4604 & 05-4781                                         Page 15

involves nonsectarian requests for wisdom and solemnity, as well as
calls for divine blessing on the work of the legislative body.” Id.; see
also id. at n.10. Thus, Snyder offers little support for the Speaker’s
position.

       Finally, several state courts have addressed the issue of
legislative prayer and are consistent with the district court’s
decision here. In Rubin v. City of Burbank, 124 Cal. Rptr. 2d 867
(Cal. Dist. Ct. App. 2002), a case nearly identical to this one, the
court struck down as violating the federal constitution a city
council’s policy of using rotating clergy who offered, in the majority
of cases, overtly Christian prayers. And in Society of Separationists
v. Whitehead, 870 P.2d 916 (Utah 1993), the court upheld a city
council’s practice of legislative prayer under the Utah constitution
in large part because of the pointedly nonsectarian nature of the
invocations. These cases appear to teach the rule that nonsectarian
legislative prayer is constitutionally sound, but sectarian appeals,
including those of an overtly Christian nature, are not.

        In our initial reading of the case law, we find little to
encourage the Speaker’s reading of the law. It appears that such an
approach would render nugatory critical facts and limitations
expressed by the Supreme Court in Marsh, even though the Court
itself and many other lower federal courts have found those points
dispositive. In pointing to congressional practices that have been
sustained, but without reference to the prayers’ contents, he asks
that we read into those cases issues that simply were not addressed
by the courts.

       The Speaker advances several other arguments that require
now, and on plenary review, our respectful attention. He suggests
that prohibiting clerics from invoking Christ would violate the Free
Exercise or Free Speech Clauses of the First Amendment. These
issues, while new to this circuit’s jurisprudence, have been
Nos. 05-4604 & 05-4781                                        Page 16

addressed by other courts and have been rejected. The same fate has
met the argument that deciding which prayers are sectarian is an
inappropriate role for judges.5


           B. Irreparable Injury and Other Factors

        As this case comes to us, the other main consideration in
deciding whether to grant a stay is the Speaker’s submission that
the House of Representatives over which he presides will be harmed
irreparably in the absence of one. Mr. Bosma contends that such
harm would stem from the fact that Indiana’s long tradition of
offering invocations would be broken absent a stay because no prayer
at all can continue in the face of the district court’s injunction.
However, as the district court took pains to point out, this harm to
the House of Representatives’ legislative tradition need not occur
under the terms of the injunction. The injunction permits prayer so
long as it is of an nondenominational nature and does not “use
Christ’s name or title or any other denominational appeal.”
Hinrichs v. Bosma, 2006 WL 182601, at * 1 (S.D. Ind. Jan. 24, 2006).
Indeed, it appears that the legislative tradition is left intact by the
injunction. The House’s current practice is to ask clergy to “strive


       5
         For the former point, see Simpson, 404 F.3d at 288; Bacus
v. Palo Verde Unified Sch. Dist. Bd. Educ., 52 F. App’x 355, 357 (9th
Cir. 2002); Rubin, 124 Cal. Rptr. 2d at 1206–07, all of which note
that individuals have sharply restrained speech and free exercise
rights when speaking on behalf of the government, rather than for
themselves alone. For the latter point, see Marsh itself: Mr.
Bosma’s position that courts may not determine which prayers are
sectarian was Justice Brennan’s view in his dissent in Marsh.
However, the Court found no difficulty in noting that the prayers in
that case were ecumenical.
Nos. 05-4604 & 05-4781                                        Page 17

for an ecumenical prayer.” It is the simply the toleration of the
failure to follow this practice that has produced this litigation and
required the action of the federal court. In reply to the injunction,
the Speaker chose to cut off all prayer and, it would appear, has
sacrificed the core aspect of the tradition--beginning the session with
an invocation for divine guidance--in order to continue a deviation
from the House’s articulated desire that the prayer not be identified
with any particular denomination. The Speaker responds in his
reply brief that “a suggestion to be respectful to those present in the
legislative setting is not remotely comparable to a binding federal
court injunction.” Appellant’s Reply Mem. at 5 (emphasis omitted).
He also suggests in an affidavit that the legislature ought not
entangle itself in the process of distinguishing between acceptable
nondenominational prayer and non-acceptable denominational
prayer. Although this claim certainly is deserving of more plenary
and respectful study on the merits review, we cannot say that
requiring the legislature to perform a task undertaken by countless
other public bodies that begin their proceedings with a prayer is an
irreparable harm--especially when the legislature itself has
articulated such a goal.

       The Speaker relies on two other cases to support his view that
courts of appeal should grant stays in sensitive Establishment
Clause cases. In Books v. City of Elkhart, 239 F.3d 826 (7th Cir.
2001) (Ripple, J., in chambers), this court stayed the mandate
pending certiorari after ruling unconstitutional a city’s display of a
six-foot by three-foot granite monument of the Ten Commandments
by itself outside the City Hall. But the removal of the monument--
which this court stated in its merits opinion, Books v. City of
Elkhart, 235 F.3d 292, 307–08 (7th Cir. 2000), would be a difficult,
sensitive, and time-consuming task--was a permanent undertaking.
Here, by contrast, the legislature must simply tolerate a temporary
interruption in permitting a type of prayer that, by its own
admission, is not the nondenominational type of prayer that it
Nos. 05-4604 & 05-4781                                       Page 18

desires. The Speaker also notes that the Eighth Circuit in Marsh
stayed the mandate pending certiorari, although there is no opinion
explaining its reasoning. But as the district court noted, the entry
of a stay under the circumstances here should not be surprising.
There was no Supreme Court authority on the issue of legislative
prayer at that time, and the Eighth Circuit’s decision in the
plaintiffs’ favor presumably would have meant firing Nebraska’s
state-salaried chaplain. No such steps need be taken in this case.

       Finally, the Speaker contends that any countervailing harm
to the plaintiffs is limited to the minuscule amount of tax dollars at
stake here. But this position is flatly contradicted by this court’s
case law. See City of St. Charles, 794 F.2d at 274–75 (noting that
plaintiffs’ injury includes the harm of the putative Establishment
Clause violation). Here the harm to the plaintiffs is no less than a
denial of religious liberty in the form of a probable violation of the
First Amendment.


                            Conclusion

       In assessing the Speaker’s chance of success on the merits of
his appeal and in balancing the slight and temporary injury he faces
absent a stay, we must conclude that the Speaker has not met his
burden of establishing that a stay ought to be granted.

                                                 MOTION DENIED




       KANNE, Circuit Judge, dissenting. Because I believe the
Speaker’s likelihood of success on the merits is greater than the
majority deems it, and the balancing of the equities favors granting
a stay, I respectfully dissent.
Nos. 05-4604 & 05-4781                                           Page 19

        The only time the Supreme Court considered the
constitutionality of legislative prayer it approved of the practice.
Marsh v. Chambers, 463 U.S. 783 (1983). A key dispute in this case,
as it appears now, is whether Marsh rests on a line drawn between
sectarian and nonsectarian legislative prayer. While there is caselaw
supporting the proposition that Marsh approves of only nonsectarian
legislative prayer, there still remain powerful arguments to the
contrary, not the least of which is the Marsh majority’s curious
ambiguity on the point. Moreover, other factual differences may
drive the ultimate ruling in this case. The nuanced nature of
Establishment Clause jurisprudence in general and the recognized
status of legislative prayer as holding its own unique place in our
nation’s history make it difficult, if not impossible, to say that the
Speaker lacks a significant probability of success on the merits.

        While I see strong legal arguments for both parties as to the
merits, my real disagreement with the majority centers on the
balancing of the equities. At the outset, it should be noted that the
harm to the plaintiffs is not that their speech is being restricted.
Thus, this is not a case where absent immediate relief speech will be
diluted or lost. See Elrod v. Burns, 427 U.S. 347, 373-74 n.29 (1976)
(emphasizing the importance of the timeliness of political speech in
conveying the intended message) (citations omitted); see also ACLU
v. City of St. Charles, 794 F.2d 265, 274 (7th Cir. 1986) (noting the
distinction between free speech and establishment of religion in
determining irreparable harm). This is also not a case where the
state is interfering with the plaintiffs’ ability to freely exercise their
religious beliefs. City of St. Charles, 794 F.2d at 274. The potential
harm in this case, assuming that the legislative prayer at issue is
unconstitutional, is a harm to the public in general: the erosion of
religious liberty and freedom that may arise due to a state’s
impermissible affiliation with religion. Id. at 275. Such a harm is
of the greatest importance–the Establishment Clause, of course,
represents a value held so highly by the Framers that it was
Nos. 05-4604 & 05-4781                                           Page 20

included in the First Amendment. But it does not follow that the
religious freedoms we hold so dear will be irreparably injured in the
time that it takes this court, and possibly the United States Supreme
Court, to evaluate the constitutionality of Indiana’s legislative
prayer. Any doubt on this issue is dispelled by the fact that the
Indiana General Assembly has been engaged in this practice for
nearly two centuries.

        The harm which leads me to conclude that a stay should be
granted is also of a public nature. Federalism concerns demand that
we recognize the important interest the Indiana General Assembly
has in conducting its internal practice of legislative prayer
unfettered by a federal court’s injunction–even one narrowly drawn.
The injunction issued in this case covers a deeply rooted tradition
that “has become part of the fabric of our society.” Marsh, 463 U.S.
at 792. More to the point, this is a “special case” that deals with
another sovereign’s “internal spiritual practices.” Van Zandt v.
Thompson, 839 F.2d 1215, 1219 (7th Cir. 1988). And as such, we
owe deference to the Indiana General Assembly’s practice with
regard to legislative prayer. Id. (explaining that Marsh reflects a
“degree of deference to the internal spiritual practices of another .
. . sovereign”). That deference cautions that we as federal judges
should move prudently in this very sensitive area of constitutional
law, which includes being reluctant to interfere with a state’s
internal spiritual practices until it is clear that it is necessary.

       Deference is certainly due here. The Indiana General
Assembly, democratically elected by the citizens of the State of
Indiana, has been opening its sessions with a prayer or invocation,
frequently delivered by a religious cleric, for the last 188 years. If for
those past 188 years the legislative prayer at issue here has occurred
on the wrong side of what is at best a murky constitutional line, then
we can at least provide the clarity of our opinion before placing a
state legislative body under federal supervision.
Nos. 05-4604 & 05-4781                                     Page 21

       The legal uncertainty caused by the special place legislative
prayer holds in our nation’s heritage and our Establishment Clause
jurisprudence, the absence of irreparable harm, and the deference
due to another sovereign’s internal spiritual practices require that
we stay the district court’s injunction at least until we can
determine for ourselves whether a constitutional violation has
occurred.
