Tipsheet: IU law professor comments on Statehouse prayer ruling
EDITORS: Indiana University School of Law-Bloomington professor and constitutional law expert Daniel O. Conkle is available to comment on a federal appeals court decision that set aside a ban on sectarian prayer at the Indiana House of Representatives. Contact information is below.
A federal appeals court decision this week on prayer at the Indiana Statehouse rests on a procedural issue and doesn't settle the question of whether opening sessions of the Legislature with sectarian prayer is constitutional, says an Indiana University law professor.
"The grounds were procedural and technical," said Daniel O. Conkle, the Robert H. McKinney Professor of Law at the IU School of Law-Bloomington. "The appellate court has not ruled upon the underlying challenge and, for that matter, has not repudiated the substance of the original District Court ruling that the sectarian prayers were unconstitutional."
A panel of the 7th Circuit Court of Appeals on Tuesday set aside a November 2005 ruling by U.S. District Court Judge David Hamilton that opening prayers in the Indiana House could not mention Jesus or endorse a particular religion. But the appeals court judges ruled that the taxpayers who brought the lawsuit challenging the prayer lacked legal standing to sue. They relied upon the Supreme Court's ruling this year in Hein v. Freedom From Religion Foundation Inc., which limited the ability of taxpayers to sue over government practices that don't include the appropriation of tax revenues.
Conkle said the plaintiffs in the Indiana case could ask the 7th Circuit Court of Appeals for a rehearing en banc -- that is, by all the judges of the appeals court. They could also ask the Supreme Court to overrule the appeals court decision; but that isn't likely, he said, and it's unlikely the Supreme Court would take the case so soon after its Hein ruling. Another possibility, he said, would be to add a plaintiff who is a member or employee of the Legislature and who could claim his or her rights were violated by being subjected to sectarian prayer.
Conkle has been a faculty member at the IU School of Law-Bloomington since 1983, teaching Constitutional Law, the First Amendment and Law and Religion. His research addresses constitutional law and theory, religious liberty and the role of religion in American law, politics and public life. He is the author of numerous articles, as well as a book titled "Constitutional Law: The Religion Clauses" (Foundation Press, 2003).
Conkle can be reached at 812-855-4331 or firstname.lastname@example.org .