Rumor has it that the ACLU of Indiana has decided it cannot devote resources to pursuing a Supreme Court review of the State House prayer case. As folks here might remember, Speaker Bosma oversaw some pretty strongly sectarian prayer as the official business of the Indiana House of Representatives. That practice was challenged in court. The District Court judge ruled that kind of sectarian prayer was inappropriate for government speech. (And let’s be clear – the speech was government speech, not individual speech. Different rules apply. Individuals were as free as ever to pray. It was simply harder for particular religious groups to mark their territory at the Indiana General Assembly). On review, the 7th Circuit did not reach the merits of whether the prayer was appropriate as government speech. Rather, it blazed a new trail in the obscure jurisprudence of “standing” and decided that the Plaintiffs were not proper parties to bring the case.
Apparently the thinking is that the chances of the Supreme Court taking the case is slim, and, if they did take the case, the chances for making the law worse are non-trivial.
I certainly appreciate the work of people like Mr. Hinrichs who was the lead plaintiff on the case (and the other plaintiffs as well — I just don’t remember their names off hand). I also appreciate the work of Ken Falk and the folks at the ACLU of Indiana. (And I say this as one currently involved in litigation with Mr. Falk on the other side.) These are the folks who throw a little salt down on the slippery slope so, even if we slide, perhaps we don’t slide so far away from our civil liberties. And they do it with not a great deal of financial reward.