                                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, 2006Œ
                             ____________


    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



Œ
    This opinion was released initially in typescript form.
2                                    Nos. 05-4604 & 05-4781

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 Establish-
ment 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 underly-
ing 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 legisla-
tive body and therefore raises important federalism con-
cerns, 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 litiga-
tion will be plain to all.


                              I
                     BACKGROUND
  The facts in this case are not disputed. For 188 years,
the Indiana House has opened its official meetings with a
Nos. 05-4604 & 05-4781                                         3

brief prayer or invocation, usually delivered by a cleric from
an Indiana community who is sponsored by a state repre-
sentative. 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 Chris-
tian clerics, 9 by representatives and one each by a lay-
man, 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 suppli-
cations 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
4                                     Nos. 05-4604 & 05-4781

legislators, however, left the House chamber, believing that
the song was inappropriate. See Hinrichs, 400 F. Supp. 2d
at 1107.
   The district court, in analyzing the record made by the
parties, wrote a thorough 60-page opinion. After a com-
prehensive overview of the facts, the district court deter-
mined that the plaintiffs had standing to bring this action.
The court held that the plaintiffs had succeeded in demon-
strating the use of tax dollars with respect to the sectarian
invocations: Several hundred dollars support the invoca-
tions 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, nondenomi-
national 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.
Nos. 05-4604 & 05-4781                                       5

                              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 conclusions de novo. In assessing
whether a stay is warranted, the district court was re-
quired 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 inter-
est. 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 irrepa-
rable 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 re-
6                                      Nos. 05-4604 & 05-4781

specting 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 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 invoca-
tions 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). Al-
though 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 demon-
strating probability of success on the merits. In Freedom From
Religion Foundation, we held that taxpayers had standing to
Nos. 05-4604 & 05-4781                                       7

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 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 arrange-
      ments, 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.
8                                        Nos. 05-4604 & 05-4781

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 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 periph-
eral to the case at hand. Id. It therefore is not bind-
ing authority. Cent. Green Co. v. United States, 531 U.S. 425,
431 (2001).1



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,
                                                       (continued...)
Nos. 05-4604 & 05-4781                                         9

  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 tax-
payer 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 consider-
ations 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 amend-
ment 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,


1
  (...continued)
1470 (7th Cir. 1988) (no municipal taxpayer standing to challenge
donated Ten Commandments monument).
10                                      Nos. 05-4604 & 05-4781

[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 indica-
tion 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. In the Speaker’s view, this language is
dictum, and Marsh does not establish a line between permis-
sible 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 prohib-
its 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
Nos. 05-4604 & 05-4781                                       11

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 proposi-
    tion 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 Thanks-
giving proclamation is the “very evil” against which the
Establishment Clause is meant, in part, to protect). Further-
more, Justice O’Connor, in her separate opinion, empha-
sized 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 Amend-
ment. 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
12                                   Nos. 05-4604 & 05-4781

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 legisla-
tive 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 in-
cluded a Roman Catholic mass and stating that Marsh
approved a “non-denominational” prayer); Van Zandt v.
Thompson, 839 F.2d 1215, 1218-19 (7th Cir. 1988) (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 permissi-
ble).
  Other circuits, however, have confronted the question of
sectarian legislative prayer directly, and their decisions
are 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
Nos. 05-4604 & 05-4781                                           13

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



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

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


3
  (...continued)
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.
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 inaugu-
ration, but does not rely on the sectarian nature of the invocation,
                                                      (continued...)
Nos. 05-4604 & 05-4781                                         15

  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 “dis-
parage[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 invoca-
tions that reflect a Judeo-Christian ethic, typically in-
volves 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 constitu-
tion a city council’s policy of using rotating clergy who


4
  (...continued)
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 con-
gressional prayer. Should a court decide a case squarely confront-
ing 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.
16                                       Nos. 05-4604 & 05-4781

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 invoca-
tions. 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 ad-
dressed by the courts.
  The Speaker advances several other arguments that
require now, and on plenary review, our respectful atten-
tion. 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 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


5
  For the former point, see Simpson, 404 F.3d at 288; Bacus v. Palo
Verde Unified Sch. Dist. Bd. Educ., 52 Fed. App’x 355, 357 (9th Cir.
2002); Rubin, 124 Cal. Rptr. 2d at 1206-07, all of which note
                                                     (continued...)
Nos. 05-4604 & 05-4781                                       17

         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 a nondenominational nature and
does not “use Christ’s name or title or any other denomina-
tional appeal.” Hinrichs v. Bosma, 2006 WL 182601, at * 1
(S.D. Ind. Jan. 24, 2006). Indeed, it appears that the legisla-
tive tradition is left intact by the injunction. The House’s
current practice is to ask clergy to “strive for an ecumenical
prayer.” It is 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


5
  (...continued)
that individuals have sharply restrained speech and free exer-
cise rights when speaking on behalf of the government, rather
than for themselves alone. For the latter point, see Marsh it-
self: 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.
18                                    Nos. 05-4604 & 05-4781

that the prayer not be identified with any partic-
ular 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 nonde-
nominational 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— espe-
cially 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 sensi-
tive 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 monu-
ment—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 legis-
lature 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 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
Nos. 05-4604 & 05-4781                                        19

authority on the issue of legislative prayer at that time, and
the Eighth Circuit’s decision in the plaintiffs’ favor presum-
ably 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 contra-
dicted 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 tempo-
rary 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
20                                   Nos. 05-4604 & 05-4781

  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.
   The only time the Supreme Court considered the con-
stitutionality of legislative prayer it approved of the prac-
tice. 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 irrepa-
rable harm). This is also not a case where the state
Nos. 05-4604 & 05-4781                                         21

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 impor-
tance—the Establishment Clause, of course, represents a
value held so highly by the Framers that it was 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 constitutional-
ity 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
22                                    Nos. 05-4604 & 05-4781

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.
   The legal uncertainty caused by the special place legis-
lative prayer holds in our nation’s heritage and our Estab-
lishment 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.

A true Copy:
       Teste:

                       ________________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                     USCA-02-C-0072—3-9-06
