Case Nos. 05-4604, 05-4781
—————————————————————————————————
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
—————————————————————————————————
ANTHONY HINRICHS, 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.
—————————————————————————————————
On Appeal from the United States District Court for the
Southern District of Indiana, Case No. 1:05-cv-00813
The Honorable David F. Hamilton, District Judge
—————————————————————————————————
BRIEF OF AMICI CURIAE
ALLIANCE DEFENSE FUND AND FAMILY RESEARCH COUNCIL
IN SUPPORT OF DEFENDANT-APPELLANT BRIAN BOSMA AND
REVERSAL OF THE OPINION OF THE DISTRICT COURT
—————————————————————————————————
MICHAEL D. DEAN
MICHAEL D. DEAN, LLC
20975 Swenson Drive, Suite 125
Waukesha, Wisconsin 53186
(262) 798-8044
COUNSEL FOR AMICI CURIAE

 CIRCUIT RULE 26.1

DISCLOSURE STATEMENT

Appellate Court No: 05-4604, 05-4781
Short Caption: Hinrichs et al. v. Bosma et al.
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party
or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement
must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court,
whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required
information. The text of the statement must also be included in front of the table of contents of the party's main brief.
Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this
form is used.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide
the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):

Amicus Curiae ALLIANCE DEFENSE FUND

Amicus Curiae FAMILY RESEARCH COUNCIL
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:

Michael D. Dean LLC

(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and

N/A
ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:

N/A

Date: MAY 16, 2006

Attorney's Signature:
Attorney's Printed Name:

Michael D. Dean

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes
Address:

No

20975 Swenson Drive, Suite 125, Waukesha, Wisconsin 53186

Phone Number:
E-Mail Address:

(262) 798-8044

Fax Number:

(262) 798-8045

miked@michaelddeanllc.com
rev. 11/01 AK

REFRESH

 TABLE OF CONTENTS
TABLE OF CONTENTS..................................................................................................... i
TABLE OF AUTHORITIES .............................................................................................. ii
INTEREST OF AMICI CURIAE...................................................................................... iii
INTRODUCTION ...............................................................................................................1
SUMMARY OF ARGUMENT ...........................................................................................3
ARGUMENT.......................................................................................................................4
I.

The Court Selectively Excised Only Christian Content
from Legislative Prayers ............................................................................................ 4

II.

The Solution to Disproportionate Frequency of Christian Prayers Is to Render
Their Frequency Random or Proportionate, Not to Eliminate Them Altogether. ......5

III. Indiana’s Legislative Prayer Is Not Traditional “Government Speech”.....................7
IV. Stastical Frequency of Christian Prayers Is a Neutral Function of Constituent
Demography, Not an Endorsement of Christianity ....................................................8
V.

The Content-Neutral House Practice Can Not Possible Be an “Endorsement” of
Christianity................................................................................................................11

VI. The Court’s Implicit Ad Hominem Against Christian Majorities Explaining the
Decision of Minorities to Offer Religiously Non-distinct Prayer Is Not a
Constitutional Mandate Forcing Religious Majorities To Likewise Offer NonDistinct Prayers.........................................................................................................12
VII. Indiana’s Legislative Prayer Does Not Establish Religion in Violation of the
Boundaries Established by Marsh.............................................................................14
VIII. Marsh Never Disapproved Prayer Phrases Characterized by Specific Religious
Content......................................................................................................................15
IX. Marsh Recognizes That the Constitution Does Not Require Dropping National
History Into the Memory Hole..................................................................................16
X.

The Speaker’s Practice Does Not “Advance” One Faith More than Others.............17

XI. The District Court Favored “Inclusive” Religions Over “Non-Inclusive” Religions,
Violating both Spirit and Letter of the First Amendment.........................................19
XII. The District Court Departed from the Founders’ Express Intent..............................21
CONCLUSION..................................................................................................................26
CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 32(a)(7) ........................................29
PROOF OF SERVICE.......................................................................................................30

 TABLE OF AUTHORITIES
Cases
County of Allegheny v. American Civil Liberties Union,
492 U.S. 573, 109 S.Ct. 3086 (1989).............................................................................2
Everson v. Board of Education, 330 U.S. 855, 67 S.Ct. 962 (1947) .............................9, 10
Hinrichs et al. v. Bosma, 400 F.Supp.2d 1103 (S.D.Ind., 2005). .............................. passim
Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649 (1992)........................................................2
Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330 (1983) ....................................... passim
Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062 (1983).......................................................9
Simpson v. Chesterfield County Bd. of Sup'rs, 404 F.3d 276 (4th Cir., 2005) ..................19
Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091 (1971) ............................................9, 10
Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409 (1970) .....................................9, 10
Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679 (1952) ......................................................3
Other Authorities
Rep. No. 376, 32d Cong., 2d Sess. 1 (1853)................................................................ 16-18
1 Letters and Writings of James Madison 349-52 (1865)............................................ 23-24
Mentor, The Federalist Papers (1961) ......................................................................... 23-25

 INTEREST OF AMICI CURIAE
Alliance Defense Fund (ADF) is a non-profit legal alliance defending the
right to hear and speak the Truth through strategy, training, funding and litigation.
The organization’s staff attorneys and more than 850 volunteer attorneys
nationwide work to defend religious freedom, traditional family values and the
sanctity of human life. ADF is interested in this case because of its implications
for religious liberty nationwide, and several of its pending cases, including Doe v.
Tangipahoa Parish School Board, et al., 2005 WL 517341 ( E. D. LA., Feb. 24,
2005), currently on appeal in the U.S. Court of Appeals for the Fifth Circuit (Case
No. 05-30294), in which ADF represents the defendants-appellants in their efforts
to overturn an injunction against opening school board meetings with an
invocation. In April 2006, ADF issued correspondence to the mayors of the 1,200
largest American cities advising them of the constitutionality of public
invocations and offering to defend them pro bono in the event such practices are
challenged at a local level.
Family Research Council (FRC) is a non-profit, research and
educational organization dedicated to articulating and advancing a familycentered philosophy of public life, together with the Judeo-Christian principles
upon which our cherished institutions rest. Headquartered in Washington D.C.,
FRC provides policy analysis, legislative assistance, research and analysis for the
legislative, executive, and judicial branches of the federal and state governments.

 FRC also works to inform the news media, the academic community, business
leaders, and the general public about issues relating to cultural morality that affect
the nation.
FRC has participated as amicus curiae in numerous cases before the
United States Supreme Court and other federal and state courts, and participates
here for its interest in the cause of First Amendment freedoms, and specific
associational freedom of religious student organizations, whose ability to maintain
standards of morality and theological conviction is critical to their ability to
sustain communities that challenge the destructive tendencies of relativism on
university campuses. FRC supports these efforts, and seeks to advance the cause
of the constitutional rights which guarantee them.

Authority. This Brief is submitted upon written consent of the parties to the
case.

 INTRODUCTION
The district court asserted that “any form of legislative prayer” was incompatible
with the “most common Establishment Clause tests” – the Lemon test, the “endorsement”
test, the “neutrality” test and (possibly) the “coercion” test, too. Hinrichs et al. v. Bosma,
400 F.Supp.2d 1103, 115, n. 11 (S.D.Ind., 2005). It further asserted that any practice of
legislative prayer was incompatible with the principle underlying these tests: government
impartiality between religion and nonreligion.

Id. at 1115. Nonetheless, the court

correctly found that legislative prayer is constitutional: the Supreme Court built it a “safe
harbor” in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330 (1983) (cited at 400
F.Supp.2d at 1104).
The court then applied the Establishment Clause standard requiring equal
government treatment of religious sects, stating at same time that no practice of
legislative prayer could satisfy that standard. It stated that all forms of legislative prayer
were more or less sectarian because all prayers had substantial denominational content.
See Id. at 1124 - 25. The court acknowledged, however, that invocations within a single
religious tradition – the “Judeo-Christian” – are an exception to the general Establishment
Clause rule of sect equality. Those prayers are privileged. The Supreme Court said so in
Marsh.
The court nonetheless enjoined the recitation of Christian prayers. It decreed that
every legislative prayer must be “inclusive” and “non-sectarian”. Given its earlier
description of the inevitably “sectarian” character of invocations, however, this goal was
inherently unrealizable. By the court’s own normative account, its order required the
Speaker to behave unconstitutionally.

 The court ascribed to Marsh v. Chambers the blame for the growing incoherence,
and eventual unconstitutionality, of its opinion. To the Supreme Court it attributed the
“assum[ption]” that a discernible boundary exists “between on the one hand exclusive
and sectarian prayer that is not permissible . . . and on the other hand the well established
tradition of inclusive and non-sectarian prayer”. Id. at 1125. “That boundary is the
foundation of Marsh v. Chambers itself”. Id.
In fact, the blame lies for the court’s incoherence lies elsewhere. Marsh attempted to
trace no line so evanescent as that found by the court here. The Supreme Court never
spoke of “inclusive” or “exclusive”. The only place in which the word “non-sectarian”
appears in Marsh is in a footnote reference to a deposition transcript. (Id., 463 U.S. at
793, 103 S.Ct. at 3337 n. 14.) Marsh was concerned to forestall what it called
“exploitation” of legislative prayers to advance or disparage a particular faith. But
nowhere did the Supreme Court say or imply that the way to avoid these ills was to
require – as did the district court here – that every legislative prayer conform to a
judicially concocted “civil religion” template.1
The decision below is no casualty of ambiguous guidance from the Supreme Court.
It is, instead, the district court’s peculiar apology for its decision to achieve its own
idiosyncratic goal – the goal of barring by specific description all prayer in “Christ’s
name”.

The court’s opinion in support of that end makes no sense save as a

1

Perhaps acknowledging its misreading of Marsh, the District Court added that “many cases
applying Marsh”sought to police the boundary line described in the text. The court also seems to
claim some support for its reading of Marsh in the Supreme Court’s later treatment of middleschool graduation prayer (Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649 (1992), cited at, e.g.,
400 F.Supp.2d at 1124) and Christmas displays at a county courthouse (County of Allegheny v.
American Civil Liberties Union, 492 U.S. 573, 109 S.Ct. 3086 (1989), cited at, e.g., 400
F.Supp.2d at 1104). In any event, the best source of the meaning of Marsh v. Chambers
2

 rationalization of that aim: to single out the Christian faith for selective discriminatory
treatment. That is what makes the decision unconstitutional. That is why it must be
reversed by this court.
SUMMARY OF ARGUMENT
The district court opinion evinces a grievous, overriding misconception. In the name
of the Establishment Clause assurance of neutrality among religions, the court, in fact,
selectively discriminated against “exclusive truth” religions as a class, and against
Christianity in particular.

Turning the Clause on its head, the court selectively

constrained religions which assert that their particular doctrines are true and
indispensable, but leaves unfettered competing religions which assert the contrary
proposition that truth propositions are dispensable at best, and erroneous and divisive at
worst.
The district court’s opinion thus undermines the Supreme Court’s bedrock principle
of neutrality which allows all religions, exclusive and non-exclusive alike, to compete on
a level field: “We sponsor an attitude on the part of government that shows no partiality
to any one group and that lets each flourish according to the zeal of its adherents and the
appeal of its dogma.” Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 684 (1952).
In pursuit of an inoffensive, socially useful civil religion, the court has achieved
quite the opposite. It has rendered prayer insignificant, reducing it to a meaningless,
purely ceremonial ascription toward some vague deity or impersonal spirituality –
uniformly amorphous and banal, intellectually contemptible, and morally despicable.

remains the Court’s opinion itself in Marsh v. Chambers.
3

 ARGUMENT
The court’s overriding misconception manifests itself repeatedly.
I.

The Court Selectively Excised Only Christian Content from
Legislative Prayers.

The district court acknowledged that Marsh’s “safe harbor” protects prayers
“in the Judeo-Christian tradition”. It then stipulated that prayers could not be
“explicitly Christian or explicitly Jewish”. 400 F.Supp. at 1117. It is hard to
imagine prayers which are “Judeo-Christian” but which are neither Jewish nor
Christian. If one strips – as the district court ordered – “Judeo-Christian” prayers
of all identifying Jewish (“yahweh”, “the God of Moses”, the “Covenant”,
“Israel”) and Christian (“Our Father Who art in heaven”, the Beatitudes, the
Apostles, and, of course, Jesus) elements, then one has stripped them of their
character as “Judeo-Christian”. Here the court seems intent on transforming
Marsh’s privileged tradition into its own – the court’s – preferred “civil religion”.
In another passage approving the reasoning of the Fourth Circuit in a
legislative prayer case, the court again defined “Judeo-Christian” in an odd way:
“the common ground shared by Judaism and Christianity [but which] did not
extend to the divinity or lack of divinity of Jesus of Nazareth”. Id. at 1119. This
definition is also difficult to comprehend. It seems to permit prayers laden with
theological specifics held by both Christians and Jews, save that these prayers
would be “exclusive” and smack of “sectarian” influences. But the forced

4

 omission of references to Jesus Christ revokes the court’s permission slip, because
the omission makes it hard to say what specifically Christian content would be
permitted. After all, the distinguishing feature of the New Testament is precisely
the divinity of Jesus Christ. Other possible distinguishing features, the Apostles,
the New Covenant, the Law of Love which perfects the old law, John the Baptist,
the Beatitudes, are understandable only in relation to Jesus as the Son of God –
evincing not so much a tolerance of the Christian religion, but rather an ignorance
of it.
Here the district court has effectively transformed Marsh into the “Judeodeleted” tradition. The only evident “safe harbor” here would be prayers based
upon Old Testament readings or stories – the Psalms perhaps, or the Book of Job
(Messianic prophecies redacted) – which recitations would indeed be “common”
to Christians and Jews. But this is to say that while Old Testament readings and
prayers are permissible, New Testaments influences must be eliminated. For the
court opined that prayer in accord with “majority” beliefs – even with an
overwhelming majority – “runs counter to the logic of Marsh in particular and the
Establishment Clause in general”. 400 F.Supp.2d at 1130. Once again, it seems
that the whole point of the court’s reasoning is to keep the Christians at bay.
II. The Solution to Disproportionate Frequency of Christian Prayers
Is to Render Their Frequency Random or Proportionate, Not to
Eliminate Them Altogether.
The court many times said that the numerical preponderance of Christian

5

 prayers was the real constitutional problem. Its criticisms are to the frequency of
Christian invocations, not their existence: “most of the prayers”; “a substantial
majority”; the prayers “repeatedly and consistently” advance belief in the divinity
of Jesus – and all these group on the first page of the opinion! 400 F.Supp.2d at
1104.
The obvious remedy for this problem would be to reduce the number of
Christian prayers to a lower number in line with whatever the court had in mind
as a statistical norm. If the court meant that the problem was too many Christian
prayers, it would have ordered that some, but not as many, prayers invoking Jesus
Christ could be given. But the court ordered not their reduction but rather their
elimination. The order thus transforms the problem from there being too many
Christian prayers to there being any Christian prayers at all.
The court took over the Establishment Clause norm requiring “neutrality”
among religions; there must be no preference for one faith over others. Id. at
1115. The obvious way to bring the House practice into conformity with this
norm would be - if reducing the number of Christian prayers is rejected – to
increase the number of non-Christian prayers. Then some kind of rough and
acceptable parity of the different faiths’ prayer forms and subject matters could be
achieved. The norm requiring sect-equality would be satisfied.
The court allowed that this proposal had “some superficial appeal”, Id. at
1129, but rejected it entirely. Why? The court declared that the Speaker’s

6

 proffered remedy would be “more intrusive than an injunction against official
sectarian prayer”. Id. at 1130 n. 18. Not so. The court’s order below required the
Speaker to “control” all prayer-givers: “the Speaker ...shall advise persons
offering such a prayer (a) that it must be non-sectarian...and (b) that they should
refrain from using Christ’s name or title or any other denominational appeal.”
Again, the court for yet-to-be-disclosed reasons was eager to eliminate all specific
content from all the prayers offered in the Indiana House.
The court admitted that the only specific prayers being given were those
offered in Jesus’ name.

And it was unmoved by several “Christian clergy who

testif[ied] that they could not offer prayers in the House in good conscience if
they are not permitted to pray in name of Jesus”. Id. at 1127. Its ruling “might
make it impossible for some clergy or believers to offer official prayers”. Id. at
1128.
III. Indiana’s Legislative Prayer Is Not Traditional “Government
Speech.”
The court criticized the Speaker’s proposal to welcome all prayers, saying
that it was incompatible with the court’s recognition of the House podium as a
place of “government speech”. But the Establishment Clause violations implied
by that characterization are non-existent because the characterization itself is
inaccurate.

It is also inherently implausible to conclude that random guests

bearing no specific public authority who appear briefly before House business

7

 begins are clearly not the kind of “government speakers” typically contemplated
when courts consider “government speech.”
Curiously, the court advertised itself as bound to follow Marsh v. Chambers.
But Marsh nowhere described the far more institutionalized practice of Nebraska
legislative prayer as “government speech”. In Nebraska, the same person offered
opening prayers for over a decade, and he did so as a salaried employee of the
state. In this case, a rotation of volunteers offered opening prayers.
The Marsh Court held that legislative prayer transcended the usual First
Amendment categories.

If Marsh meant to make anything clear, it is that

legislative prayer is, constitutionally speaking, sui generis. The court’s great
desire to return legislative prayer precisely to the usual analytical categories –
“government speech”, “sect-neutrality” – is thus not only contrary to controlling
precedent, but indicates that the court has chartered a course to a destination of its
own liking.
IV. Stastical Frequency of Christian Prayers Is a Neutral Function of
Constituent Demography, Not an Endorsement of Christianity.
The court equated the preponderance of Christian prayers in the Indiana
House – they were assertedly a “substantial majority” – with a prohibited
government “endorsement” of Christian faith. But this equation is demonstrably
incorrect. Statistical frequency cannot be a prohibited “endorsement”.
The problem with the court’s thinking is easily illustrated. Take the case of

8

 tax exemptions for churches, a practice which (like legislative prayer) is
presumptively contrary to the Supreme Court’s doctrines forestalling government
promotion of religion. But, like legislative prayer, the practice of tax exemptions
bears a distinguished historical pedigree. Walz v. Tax Commission, 397 U.S. 664,
90 S.Ct. 1409 (1970). Now, it is safe to speculate that a “substantial majority” of
churches enjoying tax exemption in most locales are, in fact, are Christian
churches. That fact is never thought to amount to an “endorsement” of
Christianity.
Examples are easily multiplied. In Marsh, the Supreme Court said that
“legislative prayer presents no more potential for establishment than the provision
of school transportation, . . . beneficial grants for higher education, . . . or tax
exemptions for religious organizations . . . .” 463 U.S. at 791, 103 S.Ct. 335-36
(citing Everson v. Board of Education, 330 U.S. 855, 67 S.Ct. 962 (1947), Tilton
v. Richardson, 403 U.S. 672, 91 S.Ct. 2091 (1971), Walz, 463 US at 691, 90 S.Ct.
at 1422-23).
In Agostini v. Felton, benefits were “available to both religious and secular
beneficiaries on a nondiscriminatory basis.” 521 U.S. 203, 231, 117 S.Ct. 1997,
2014 (1997).

The Court stated,

“Nor are we willing to conclude that the

constitutionality of an aid program depends on the number of sectarian school
students who happen to receive the otherwise neutral aid.” Id. at 521 U.S. at 229,
117 S.Ct. at 2013 (citing Mueller v. Allen, 463 U.S. 388, 401, 103 S.Ct. 3062,

9

 3070 (1983) (“We would be loath to adopt a rule grounding the constitutionality
of a facially neutral law on annual reports reciting the extent to which various
classes of private citizens claimed benefits under the law”).
These examples cover the whole spectrum of beneficiary descriptions: in
Tilton the beneficiaries were described under a non-religious title, and some were
religious; in Everson the state program described beneficiaries as children
attending religious schools, and most were Roman Catholic; in Walz the
beneficiaries were, in relevant part, churches; in Agostini, public school teachers
provided remedial education in private, predominantly sectarian schools. The
Marsh passage makes clear that a public program which makes benefits available
on grounds which do not favor one religion over another is immune from
constitutional criticism due to the statistical profile of beneficiaries.
The opportunity to open the Indiana House session is extended to a
beneficiary class co-extensive with the purpose of the invitation. As the Speaker
asserted and the court below never denied, there was no evidence of intentional
sorting or discrimination among the class. That most of those who gave opening
prayers were Christian is to be expected; Christians are indeed a “substantial
majority” of the American population. Again, unless the frequency of a certain
type of beneficiary gives rise to a suspicion that some discrimination in selection
must be at work, there is no basis whatsoever for constitutional criticism. For
instance, had the Indiana House prayers been three-quarters Jewish or two-thirds

10

 Mormon during a given legislative session, some investigation of the selection
process would be warranted. But not otherwise.
V. The Content-Neutral House Practice Can Not Possible Be an
“Endorsement” of Christianity.
The court’s wholly fallacious account of “endorsement” supplanted an
entirely correct account described by the Speaker. Speaker Bosma asserted, and
the court nowhere denied, that volunteers of all faiths were sought, that the
Speaker did nothing to skew the selection towards or away from any particular
faith, and that he made no effort to monitor or supervise the content of prayers.
400 F.Supp.2d at 1128 – 29.
The Speaker argued below that these procedures protect against any inference
of government endorsement of a particular religion. Amici argue that these facts
meet precisely the relevant concern of the Supreme Court in Marsh: “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”. 463 U.S. at 794-95; 103 S.Ct. at 3337-38
(emphasis added). And in Marsh, the same Presbyterian clergyman offered
prayers for 16 years running.
The district court rejected wholly these considerations. The judge said that
they have “no support in First Amendment values, principles, or jurisprudence”.
400 F.Supp.2d at 1129. “[T]he focus of the Establishment Clause is on the

11

 content of the government speech, not on the identity of the person speaking.” Id.
(Emphasis added.)
VI. The Court’s Implicit Ad Hominem Against Christian Majorities
Explaining the Decision of Minorities to Offer Religiously Nondistinct Prayer Is Not a Constitutional Mandate Forcing
Religious Majorities To Likewise Offer Non-Distinct Prayers.
The court found that “[a]ll the other prayers for which transcripts were
available “included a broad spectrum of faith and belief and avoided sending the
message to many that they are ‘outsiders’ and to others they are ‘insiders’”. The
“only available transcript of a prayer led by anyone not professing the Christian
faith, by a Muslim iman on March 8th, was inclusive and was not identifiable as
distinctly Muslim by its content”. Id. at 1108.
The court opined that this was “no[] mere coincidence” that prayers by nonChristians were not “exclusive”.

“Clerics of religious minorities often have

substantial experience in getting along with a majority who believe differently
and in avoiding giving offense to that majority in a public setting”. Id. at 1126, n.
16 That is: non-Christians did not, would not, and could not offer “exclusive”
prayers as the Christian clergy regularly did. “Minority” religions understand that
they must not give offense to their more powerful Christian neighbors.
Christians, however, are “tempted” to “use the power of government . . . in ways
that would actually divide and exclude”. Id. at 1131. They are “tempted” because
they are the majority and can expect to win any political competition among the

12

 sects. And they are “tempted” because they see their faith “as true and benign”.
Id.
The district court offered no authority or evidence or reason for this vicious
speculation. But the speculation surely drives the court’s whole opinion: nonChristians in America are made to feel by their numerically superior neighbors to
be merely tolerated, strictly on condition that they defer to the sensibilities of
Christians.
Note especially that the court is not saying here that Christians are offended
when non-Christians insult them, or caricature Christianity, or even when nonChristians expressly deny the divinity of Christ. The court is instead saying that
Christians are offended when Jews, for example, simply profess their belief in
Judaism, and when Muslims profess their belief in Islam. The court is saying that
non-Christians like the rabbi and iman who appeared in the Indiana House have
internalized these Christian threats. That is why they muffle their faith in public.
But muffling their native religious language in public is just what the court
ordered. They speak that way because they – according to the court – Christians
push back when they try to do more. Once again, the court’s desired conclusion
appears in the premises: “exclusivity” is the problem, and because only the
majority religion dares to act “exclusively”, their prayers are a constitutional
problem. And because Christians are the “majority” religion in America, only
their prayers are problematic.

13

 VII. Indiana’s Legislative Prayer Does Not Establish Religion in
Violation of the Boundaries Established by Marsh.
The court said that the numerical preponderance of Christian prayers took the
Indiana practice out of Marsh’s “safe harbor”, subjecting it to the usual
constitutional categories beyond Marsh’s port-of-call. But in Marsh there was
far greater evidence of government preference than in this case. The Nebraska
legislature selected and paid a single clergyman for sixteen years to open their
sessions with prayer – Robert Palmer, a Presbyterian minister.

There were

sometimes guest chaplains, too. But the Supreme Court said that, “[a]bsent proof
that the chaplain’s reappointment stemmed from an impermissible motive”, his
long tenure did not violate the Establishment Clause. We have seen that, in this
case, the Speaker harbored no “impermissible motive”.
Besides, if Marsh meant to say anything about Christianity, it was surely not
to single it out for special scrutiny or hostile treatment. Quite the opposite. The
message of Marsh at the end of the day is to privilege Christian prayer (in some
way, up to some significant point) due to its unique historical role in our country’s
traditions, and due to its numerical preponderance among the people today. The
court effectively turned Marsh on its head, rendering Christianity uniquely
suspect because it is, and has always been, the majority’s faith.
It is a commonplace of our constitutional history that, in our system of free
churches, a certain uneven prominence of Christianity was inevitable, natural, and

14

 acceptable. For most of our history this prominence was also thought to be good:
the conviction was that Christianity, especially Protestantism, was uniquely in
tune with our democratic way of life. But it is absolutely essential to note here
that none of these encomia were thought to violate the Establishment Clause.
These testimonies to Christian prominence instead express the historical,
demographic, and political facts of the matter. And the Establishment Clause has
always been thought to tolerate such encomia. What the Clause prohibits is
something else: government assertions that Christianity (or any other particular
faith) is true. But not even the court accuses the Indiana House of that violation.
The Supreme Court’s opinion in Marsh spoke casually about the content of
the Nebraska prayers. Various descriptions are mentioned; none is endorsed and
none is singled out for criticism. Among the descriptions were: “invo[cation] of
Divine guidance”; “prayers in the Judeo-Christian tradition”; “nonsectarian”;
“elements of the American civil religion”.

Some of the “earlier” prayers

contained references to Christ. They were removed after a complaint from a
Jewish legislator; the Court offered no judgment of this development, and gave no
indication that it was essential to its holding.

The Chaplain offering all

Nebraska’s prayers was (we have seen) a Presbyterian minister. And the high
Court recommended the example of Samuel Adams, member of the Continental
Congress in 1774, who was willing to hear prayers from a Protestant Christian of
a denomination other than his own.

15

 Nowhere in Marsh is there evidence that all “sectarian” prayers generally –
or Christian invocations in particular – were unconstitutional.

The passage in

Marsh referred to “invok[ing] Divine guidance on a public body” as not even a
“step toward establishment”, but rather as a “tolerable acknowledgment of beliefs
widely held among the people of this country”. 463 US at 792. Of course,
inviting one and all local clergy members to volunteer to offer prayer would be a
practice which was “a tolerable acknowledgment of beliefs widely held among
the people of this country”. The district court offered no reason at all for rejecting
this reading of Marsh.
IX. Marsh Recognizes That the Constitution Does Not Require
Dropping National History Into the Memory Hole.
Both Marsh and the court below testified to this tradition of a peculiar
prominence for the “Judeo-Christian” tradition. The best illustration is the 1853
United States Senate Report (S.Rep. No. 376, 32d Cong., 2d Sess. 1 (1853),
hereafter “Senate Report”) cited in Marsh, 463 U.S. at 788, 103 S.Ct. at 3334 n.
10, and mentioned here by the District Court.
The Report took up petitions submitted to Congress to abolish the office of
Chaplain. The ground allegedly supporting abolition was the Establishment
Clause. The Senators thus faced something like the challenge facing the district
court in this case.
They started by saying what non-establishment meant at the founding: “the

16

 connexion with the state of a particular religious society, by its endowment at
public expense, in exclusion of, or in preference to, any other, by giving to its
members exclusive political rights, and by compelling the attendance of those
who rejected its communion upon its worship, or religious observances”.
The Senate Report emphatically rejected the suggestion that the unvarying
Congressional selection of some Christian minister as Chaplain violated this norm
of constitutional law. Of the fact – which was a fact in 1853 – that “those who
have the power of appointment” (members of Congress) chose Christians to be
chaplains they said: it is not “the result of any legal right or privilege”. The
Christian tendencies of the Chaplains “results instead from the fact that we are a
Christian people – from the fact that almost our entire population belong to or
sympathize with some one of the Christian denominations . . . and Christians will
of course select for the performance of religious services, one who professes the
faith of Christ”. Senate Report 3.
The court’s decision here is thus completely alien to the historical sources
relied upon in Marsh which the decision professes to follow.
X. The Speaker’s Practice Does Not “Advance” One Faith More
than Others.
The district court concluded that the Speaker’s practice “advanced” one faith
more than others and thus . This “advancement” violated the Establishment
Clause. But what was court’s reasoning in support? Of the Christian ministers

17

 who delivered some of the prayers, the court said: “They do not shy away from a
conclusion that the prayers ultimately reflect an endorsement or advancement of
Christian belief”. 400 F.Supp.2d at 1130. Of course they do not “shy away”. One
presumes that Christian ministers praying in the name of their Lord do so to
“endorse” that faith. So far considered, this is an argument against all legislative
prayer.

But Marsh establishes beyond doubt that legislative prayer is

constitutional. So, the earmark of unconstitutionality has to be more than the
sincere belief of the one offering prayer that the prayer is, in some important
sense, true.
The court decided to say that whenever one “express[es] the faith of a
particular religion” one “advances” that religion. But “advance” simply cannot
mean “state”, “recite” or “articulate”, even if it is also stipulated to involve belief
by the one “reciting” in the truth or value of that which he or she recites. One
does not say, for example, that the government “advances” the beliefs of military
or prison chaplains whenever these chaplains express their beliefs in the course of
performing their duties. One would not say that the government “advances” a
particular faith whenever an individual legislator expresses a particular religious
conviction.

And one should not say that the Indiana House “advances”

Christianity when rotating volunteers express their faith commitments.
As it did in discussing “endorsement,” the court again cherry-picked negative
judgmental terms from the Establishment Clause corpus and tacked them to facts

18

 in the record in a most arbitrary and result-driven way.
XI. The District Court Favored “Inclusive” Religions Over “NonInclusive” Religions, Violating both Spirit and Letter of the First
Amendment.
On the first page of its opinion the court declared the “relief” afforded
plaintiffs to be this: “any” official prayer “be inclusive and non-sectarian, and not
advance one particular religion”. 400 F.Supp.2d at 1104.

And this relief is

consistent with a pervasive theme of the court’s entire opinion below, namely,
that all legislative prayers find their legitimacy in their “inclusiveness” and
“common religious ground”, and that none tend to “exclude” or “divide up”
Americans according to what they profess. Quoting Simpson v. Chesterfield
County Bd. of Sup'rs, the court said stated that “Marsh requires that a divine
appeal be wide-ranging, tying its legitimacy to common religious ground”. 400
F.Supp at 1129 (quoting Simpson, 404 F.3d 276 (4th Cir., 2005), citing Marsh,
463 U.S. at 786, 792, 103 S.Ct. 3333, 3336).
But why? Why has the court here taken real legislative prayer authorized by
Marsh and tried so hard to reduce it to an innocuous, inclusive ceremonial deism?
When all is said and done, this is the basis of the decision of the court below: no
prayer may bring to mind the fact – though it is a fact – that we are a pluralistic
nation of diverse religious faiths. Here quoting again with approval Judge
Wilkinson: “When we gather as Americans, we do not abandon all expressions of
religious faith. Instead our expressions evoke common and inclusive themes and

19

 foreswear...the forbidding character of sectarian invocations”. 400 F.Supp. at
1130 -31. The court quoted Judge Wilkinson further, and still approvingly, about
the “ecumenical potential of legislative invocations”; the “genre approved by
Marsh is a kind of ecumenical activity that seeks to bind peoples of varying faiths
together in a common purpose”. 400 F.Supp.2d at 1121, n. 13. Along with the
court’s constant reliance upon “insider/outsider” effects and the overriding need
for a unifying “civil religion”, we can conclude that the court below took a strictly
religious activity and subjected it to a political effects test.
But the Supreme Court affirmed in Marsh v. Chambers the effort by those
exercising legislative authority in America to actually seek “divine Guidance” in
and for their work. This is what countless American legislators through the
centuries have done.

The practice corresponds to what countless ordinary

Americans still do when they begin their work day.

This activity may be

witnessed by and even formally participated in by persons with little or no real
religious faith. But the activity is, and is meant by most of those performing it to
be, a religious act. The practice is animated by the conviction that legislators will
actually do better if they actually receive divine assistance.

The practice

presupposes that there is a “divine” Being; that this Being is a greater than human
source of meaning and value for humankind; that this divine Being is good
(otherwise its assistance would not be sought); that this Being hears the petitions
of human beings; and, finally, that this Being is willing to consider and answer at

20

 least some of them.
The presuppositions of sincere appeal for genuine divine assistance – and not
some feeling of universal “inclusion” – mark the limits of legislative prayer. The
Supreme Court in Marsh v. Chambers established that within these
presuppositions or parameters, no one faith should be advanced over another –
save for a residual (historical, demographic) “connexion” to the “Judeo-Christian”
tradition. Indiana’s practice is certainly within these parameters.
The court threw all that out. It radically redefined legislative prayer, making
it akin to “ceremonial deism” – a holy-sounding formality with no real religious
significance. Prayerfully seeking and hoping to obtain divine help is the point of
legislative prayer. Its point is not to affirm some kind of non-religious “civil”
unity across the whole population.
XII. The District Court Departed from the Founders’ Express Intent.
The district court finally sought to ground its holding in fidelity to the
founders.

But the court was not striving here to be faithful to a norm of

constitutional law actually enacted by the founding generation. The arc of its
peculiar fidelity was much more strained. The court did not apply the
constitutional norm of religious equality in any recognizable way. And it surely
did not apply the leading precedent binding on him, Marsh v. Chambers.
The target of the court’s affection was instead a set of putative
understandings about the relationship of religion and politics. The district court

21

 said that “strong”, “vigorous” faith held by people with the “best of intentions”
“caused war and oppression”, leads to “division, exclusion and worse”.2 These
consequences of faith were, however, most acute and most probable where a
“majority” held its faith as “true and benign”. 400 F.Supp.2d at 1131.
Here the court relied upon what it said was the teaching of the founders.
“The Founders recognized that we are a people of many strong and vigorous
faiths”. Because of their knowledge of “centuries” of religious wars and
oppression, they sought to protect against people of faith; “they recognized that a
majority who sees its faith as true and benign can be tempted in a democratic
republic to try to use the power and prestige of government to advance that faith
in ways that would actually divide and exclude.” Id.
It is easy to see that the court meant to use its story about the “founders” as a
parable about twenty-first century Christians. But the story about the founding is
false. The object lesson for our day misses its mark.
The founders did indeed stand close enough in time to wars of religion in
their British homeland not to forget religion’s potential divisiveness. They had
also recently come through an armed conflict with French and Indians for control
of North America, and that conflict contained within it some animosity between
Catholics and Protestants. And, though we look upon the founders’ society as
2

The logic of proscribing vigorous faith because it leads to religious violence might also
require proscription of democracy (two world wars) or of freedom (Civil War) – perhaps
even of beautiful women (Trojan War).

22

 remarkably homogeneous, they considered it to be religiously diverse and
perilously inclined to conflict rooted in sectarian differences. The founders
possessed no confidence born of successful social experiments with religious
liberty in diverse societies. There were none.
The founders were acutely aware of the problem (as they called it) of faction.
Madison’s Tenth Federalist Paper has endured as a landmark in both
constitutional exegesis and political theory. The cure concocted there for the
mischief of faction—extending the sphere to encompass the broadest possible
collection of interests — is a profound contribution to constitutional theory.
Madison treated religio-political conflict as but another example of factional
discord, one more symptom demanding the same remedy. “A multiplicity of
sects” was productive of religious liberty because it would prevent even the
strongest religious group from commandeering the state to oppress the others.
The “others” combined would always be stronger than the strongest individual
group among them.
Madison provided a fleshy outline of his argument to Jefferson in October
1787, just weeks after the Philadelphia constitutional convention concluded. See
Madison to Jefferson (Oct. 24, 1787) reprinted in 1 Letters and Writings of James
Madison 349-52 (1865). This missive to Jefferson accentuates those features
which explore the problem of religious faction. Madison first previews his key

23

 premise: “All civilized societies” are characterized by distinctions of property and
material interest, and thus all societies are beset by the major cause of faction. Id.
at 351. In addition to these “natural” distinctions, “artificial” ones rooted in
“opinions,” political as well as religious, will surface. Id. Madison then affirms
the lamentable steadfastness of popularly-held ideas: “However erroneous or
ridiculous these grounds of dissension and faction may appear to the enlightened
Statesman or the benevolent philosopher, the bulk of mankind, who are neither
Statesman nor philosophers, will continue to view them in a different light.” Id.
After careful consideration then, did Madison propose to leave the religious
citizen not only unencumbered, but positively empowered to do political combat.
He said, in Federalist Ten:
A religious sect may degenerate into a political faction in a part of
the Confederacy; but the variety of sects dispersed over the entire
face of it must secure the national councils against any danger
from that source. If the same sect form a majority, and have the
power, other sects will be sure to be depressed. Divide et impera,
the reprobated axiom of tyranny, is, under certain qualifications,
the only policy by which a republic can be administered on just
principles. Mentor edition, p. 84 (1961)
Madison made precisely this argument to the Virginia Convention which
ratified the Constitution. In fact this argument – that religio-political contention is
inevitable and its effects acceptable in an extended republic, so long as public
authority is not permitted to legally discriminate among the contestants – was
made wherever the “Publius” series circulated. And there was nothing of the

24

 court’s inoffensive “civil religion” about it.
“Divisiveness” due to religion is surely part of the founders’ story about
church and state. However, they not only soberly judged that the political system
could handle that sort of conflict, they constructed and justified our constitutional
order, partly, in order to handle it. The centerpiece of the founders’ whole
strategy for handling religious conflict was to let the religions be themselves, to
express themselves publicly, and to have at it–so long as the government itself did
not stamp one as true.
Madison articulated the founders’ reasons for refusing to try to put the genie
of particular religious expression back into the bottle. In the Tenth of the The
Federalist Papers he also considered the two means of removing the cause of
faction, including those born of a “zeal for different opinions concerning
religion”.

Mentor at 79.

One could seek to remove faction’s causes by

“destroying the liberty which is essential to its existence” or by “giving to every
citizen the same opinions, the same passions, and the same interests”. Id at 78.
The first was, according to Madison, a remedy “worse than the disease”, for
it was tantamount to abolishing liberty itself. “Liberty is to faction what air is to
fire, an aliment without which it instantly expires”.
impracticable as the first would be unwise.

The second was “as

As long as the reason of man

continues fallible, and he is at liberty to exercise it, different opinions will be
formed”.

All in all, Madison concluded, the “latent causes of faction are thus

25

 sown in the nature of man”. Id. at 78 – 79.
It is not quite right to say that the district court means to give everyone the
same religious opinions. It is quite right to say that it wants everyone in the
Indiana House to hear the same religious opinions. The court’s precise intention
is that no one present be disturbed in belief or, in fact, hear anything at all which
strikes the hearer as distinguishing anyone present from anyone else present.
CONCLUSION
Ironically, in the name of not Establishing Religion, the district court itself
wrote official prayers – ones which it believed would “transcend denominational
boundaries” and unite all those listening – especially legislators – in a common
purpose. The tragedy of the court’s work is not only that the court imposed its
own view of acceptable prayer, but in so doing, rejected the best way to achieve
its own goals.
The court’s failure was one of will and of imagination. The failure of will
was its evident hostility to Christianity, and manifest in the shredded remains of
Marsh v. Chambers.

The failure of will suffuses the disastrous equation of

“discord” to simple distinctiveness or difference, of “advancement” to simple
profession of what one holds dear, of “endorsement” to the belief in the truth of
what one professes. The failure of will is manifest in all the other evidence that
convicts Christianity of intolerance for simply being what most Americans
believe.

26

 The failure of imagination was to overlook precisely the capacity of
legislative invocations to unite people in real tolerance of diverse faiths even as
they hear prayers of faiths which they do not profess and with which they
disagree. The district court failed to see that Americans are a pluralistic people in
religion who can be united in and through their differences. The court could not
see that its pious pronouncements of civil religion imposed a constitutional
straitjacket that neither inspires legislators nor really unites them – for those
vacuous soliciations for “spiritual” assistance from no one in particular lack the
urgency and plaintiveness of real prayer, and at the same time still fail to unite a
people who see them for what they are.
There is an alternative. It helps here to think of “legislative prayer” – seeking
Divine guidance in the public’s work – as a genre, and to think of particular
prayers as different species. Within the genre of “appeals for divine guidance”
there is room for many specific (or “sectarian”, if you like) approaches. Where
the species of prayer one day involves Christianity, we may say that some
legislators are united as brothers and sisters in faith, but that all are united at least
as cousins by their common theistic commitments and by their belief in the
possibility of divine assistance. Another day some non-Christians may be united
as siblings in faith, but all the same the whole body as believing Americans – all
brothers and sisters in the common political purpose, united in and through their
real tolerance of each others’ differing religions, not in judicial suppression of

27

 religious differences.
So long as the proportions of the different species give rise to no inference
that the genre has been commandeered by one species, the Establishment Clause
is satisfied, as the republic benefits.
Respectfully submitted this 17th day of May, 2006.
MICHAEL D. DEAN, LLC
________/S/______________________
Michael D. Dean, Counsel for Amici Curiae

28

 CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(c), the undersigned
certifies that this brief complies with the type-volume limitation of Rule 32(a)(7)(b). As
measured by the word count provided by Microsoft Word 2003, and in accordance with
provisions of Federal Rule of Appellate Procedure 32(a)(7)(b)(3)(iii), this brief contains
6,598 words.
_____________/S/_____________________
Michael D. Dean
Counsel for Amici Curiae

 PROOF OF SERVICE
The undersigned does hereby certify that on the 17th day of May, 2006, two true and
accurate copies of the foregoing were sent by U.S. Mail, first class postage prepaid, to:
Counsel for Appellant:
Steffen Johnson, Esq.
Andrew Nichols, Esq.
Winston & Strawn LLP
1700 K Street, NW
Washington, DC 20006-3817

Counsel for Appellee:
Kenneth J. Falk, Esq.
Indiana Civil Liberties Union
1031 E. Washington Street
Indianapolis, IN 46202

________/S/______________________
Michael D. Dean,
Counsel for Amici Curiae