Chicago, USA - The federal appeals court panel hearing the Indiana House speaker's challenge to a ban on sectarian prayer in the legislature expressed reluctance to set a new precedent.
The three judges of the 7th U.S. Circuit Court of Appeals who heard the case are expected to make a decision in the next several months. Then Indiana House Speaker Brian C. Bosma or the American Civil Liberties Union of Indiana can request that the case be heard by all 12 members of the appeals court or go directly to the U.S. Supreme Court.
Judge Michael S. Kanne said Thursday that upholding the ban could "change the way that Congress operates," because federal lawmakers begin their sessions with prayers.
Kanne, along with presiding Judge Kenneth F. Ripple and Judge Diane P. Wood of the 7th U.S. Circuit Court of Appeals are expected to decide in the next several months whether a lower court ruling that prohibits endorsing any particular religion during legislative prayer will stand.
Steffen Johnson, a lawyer for Speaker Brian C. Bosma, R-Indianapolis, told the three-judge panel the ban amounts to a restriction on the First Amendment right to free speech.
He said legislative prayers should be classified apart from public government speech, which is held to a different legal standard in instances of prayer.
"The speaker of the House exercises no control over the religious content of these prayers," Johnson said after the hearing.
But Ken Falk, legal director for the American Civil Liberties Union of Indiana, told the judges the U.S. Supreme Court has "been quite clear that in a legislative session, religious speech, prayers, must be nonsectarian."
Both sides faced pointed questioning from the judicial panel.
In one exchange, Wood rebuffed the argument that legislative prayers should be considered "personal speech." She suggested that "proselytizing in the Indiana House in the speaker's box" is not the same as speaking while "standing on (one's) own front yard."
In that way, she suggested legislative prayers that blatantly push one religion over another are inappropriate.
Johnson, Bosma's attorney, disagreed, saying legislators speaking before their colleagues on legislative matters "realize they are speaking in their own voice. They are not necessarily speaking on behalf of the government."
Bosma said the case could broaden or tighten standards that have guided court decisions on similar disputes since the U.S. Supreme Court established boundaries on legislative prayers in a 1983 case out of Nebraska.
In Marsh v. Chambers, the U.S. Supreme Court decided 8-3 that prayers may be said as part of the Nebraska Legislature's official actions after references to Christ had been removed.
Then-Chief Justice Warren Burger noted that prayer is a historic tradition in the United States. Congress authorized the appointment of paid chaplains in 1789 -- three days before reaching final agreement on the Bill of Rights, which bars the establishment of an official religion.
"There can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society," Burger wrote.
Bosma said he expects that Indiana's case eventually will be decided by the U.S. Supreme Court.
"This case has much greater implications than just the Indiana House," Bosma said after the hearing. "It actually has implications for every state government, every local unit of government, even our own Congress."
Thursday's arguments, before a packed courtroom on the 27th floor of the Dirksen Federal Building, marked the latest turn in a controversy that erupted last year. That's when civil liberties activists in Indiana sued Bosma to halt the legislature's practice of observing overtly Christian prayers before its daily sessions.
The case has stirred new interest in the national church-state debate and underscored Indiana's standing as a bulwark of Christian conservatism.
The Bush administration has written a brief supporting Bosma, while the American Civil Liberties Union, Anti-Defamation League and American Jewish Committee have filed opinions favoring the plaintiffs.
On Thursday, Lowell V. Sturgill, an attorney representing the federal Department of Justice, said the courts should not "be in the business of" restricting prayer.
Once the three-judge panel makes a decision, either side could request the case be heard by the full 12-member appeals court or go directly to the U.S. Supreme Court.
Federal District Judge David F. Hamilton last fall ruled that Bosma and other lawmakers have no right to "use an official platform like the Speaker's podium . . . to express their own religious faiths."
The ACLU of Indiana challenged the practice on behalf of four people, who believed the prayers -- usually Christian -- were offensive and violated the constitutional separation of church and state.
Four of every five House prayers during the 2005 General Assembly session were by Christian clergy, the judge concluded. About three in every five were given in the name of Jesus, the Savior and/or the Son.
The debate spilled into this year's session, which was held from January through mid-March.
Bosma sought an injunction from thesame 7th Circuit panel to temporarily lift the ban while the case was appealed. The court ruled against him 2-1, with Judge Kanne casting the dissenting vote.
Bosma and other House lawmakers gathered in the rear of the chamber and held prayers before daily business began.
So far, Indiana taxpayers, who are footing the bill for Bosma's appeal, have paid $67,000. Bosma said Thursday that legal bills are already "approaching $100,000."