ࡱ> $&!"#` Gbjbjss 14 %PPPl F F F8XF\F KgTGG"GGGHHHfffffff$ihlfOHHOOfGGgeTeTeTOlGGfeTOfeTeTah6cGG p* FP~bbVctg0KgrblQl 6cl6c HsJ0eTKL~HHHffTdHHHKgOOOO&|< |<  IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT APPEAL NO. 78X27  FRED PERRY, et al. Plaintiffs Appellants v.Appeal from the United States District Court, District of IndependenceDONALD BUDGE, et alDefendants Appellees.  Opinion of the Court  Tilden, J. delivered the opinion of the Court: This is a case challenging the propriety of prayers in the Independence House of Representatives. It involves the first two clauses of the First Amendment. The first states, Congress shall make no law respecting an establishment of religion (the Establishment Clause), and the second clause states, or prohibiting the free exercise thereof. (the Free Exercise Clause). In Marsh v. Chambers, 463 U.S. 783 (1983), the Supreme Court carved out an exception from normal Establishment Clause jurisprudence and held that prayers given in Nebraska at the start of legislative sessions were constitutional. However, the Marsh Court, as well as subsequent jurisprudence, stressed that the prayers in question did not promote a particular religious belief over another and did not amount to proselytizing. Each session of the Independence House of Representatives opens with a prayer, an Invocation. The prayers are given by clergy or legislators who are given permission by the Speaker of the House to address the Chamber. A large majority of the prayers are clearly Christian in orientation, explicitly mentioning Jesus, Christ, the Son of God, or Savior. These prayers, which the Speaker of the House plans to continue in the next session, go beyond the constitutional boundaries permitted by the First Amendment and are unconstitutional. As we explain below, this Court reverse the decision of the district court and remand the case for entry of an injunction to insure that the prayers satisfy constitutional requirements. I. Facts A. The Legislative Practice The legislative authority in Independence is vested in the General Assembly that contains the Senate and House of Representatives. (Ind. Const. art. IV, 1). The House consists of up to 100 members (Ind. Const. art. IV, 2) and meets in the Independence Statehouse. (Ind. Const. art. IV, 9). The chamber of the House consists of the room in which the House members meet as well as public galleries from which the proceeding can be observed. The Speaker of the House is elected by the members of the House. (Independence Code 2-2.1-1-7, Ind. Const. art. IV, 10). The Speaker of the House is given the authority to call the House to order and to have general direction of the House chamber, as well as the rooms and hallways adjacent to the chamber. (Rules, Part III.B.20 and Part I, Definition hall). The current Speaker of the Independence House of Representatives is the Hon. Donald Budge. The Speaker presides over the House from the Speakers stand that is at the front of the House. Under the Rules of the House of Representative, no person can enter the Speakers stand or stand upon the steps leading to the Speakers stand without being invited to do so by the Speaker. Sessions of the House of Representatives generally proceed in the following order: the House is convened by the Speaker gaveling the group to order while he is at the Speakers stand; the Invocation is offered; the Pledge of Allegiance to the Flag is said; the Speaker orders the roll of the House to be taken; and the House conducts its business. The Invocation is a prayer that is offered either by a cleric or a Representative if no cleric is present. The prayers are a few minutes in length. The Speaker of the House authorities the clerics or House members to give the prayers from the Speakers stand. Invocations have begun House of Representative sessions for 188 years. The clerics are chosen by State Representatives completing a Minister of the Day form specifying the date that the cleric is available. Once the form is received the chairperson of the House caucus of the Speakers political party schedules the actual date. When a cleric is selected he or she will receive a brief form letter. The cost of this letter, paid for out of State tax revenues, is $.54 per mailing. The letter states that [t]he invocation is to be a short prayer asking for guidance and help in the matters that come before the members. We ask that you strive for an ecumenical prayer as our members, staff and constituents come from different faith backgrounds. Thank you for your consideration. The Speaker of the House or anyone else associated with the House of Representatives gives no further guidance to the cleric as to the nature of his or her prayer. The House of Representatives employs a photographer who is available to take pictures of matters related to the session. This includes pictures of constituents with their Representatives. The photographer is available to take pictures of the clerics during the prayer and on a number of occasions during the 2005 session provided these photographs to the clerics. The photographs are provided at public expense and cost $.68 each. The photographs may be mailed to the clergy person with a form thank-you letter. If the photograph is mailed it is usually mailed with a protective card as well as the form letter, which will cost $1.60 per mailing, not including the cost of the photograph. If the cleric does not choose to receive a photograph, the cost of the form thank you letter alone is $.54. There is no record of the number of times that this letter was sent out in 2005 to clerics. When a Representative gives the invocation, he or she receives no guidance from the Speaker of the House or any other person associated with the House of Representatives. As of the 2005 legislative session, the Independence House placed all of its session, including the invocations, on a web-stream that is available on the Internet. At the current time, the cost per hour for the streaming video is $112.85 or $1.88 a minute. The transcript of the prayers from the 2005 session discloses that the House met on 53 days. An invocation was given before each session, although on 8 days the invocation was not recorded or is not audible on the web-stream. However, the person giving the invocation is identified, even if there is not a transcript of the invocation. The invocations were delivered as follows during the most recent session: Person DeliveringNo. of timesPastor, Reverend, Father or other person identified with a Christian church41Lay person1Rabbi4Imam1Legislator9 Of the 45 Invocations for which a transcript is available 29 note that they are offered in the name of Jesus, Christ, the Savior and/or the Son. In a small number of Invocations the officiant notes that he or she is personally praying in the name of Jesus or Christ. However, in the majority of these Invocations the officiant does not so limit the prayer and states or implies that the prayer is offered in the name of Jesus Christ or the Savior not just in the name of the officiant but also by all those assembled. Additionally, in many of the prayers, the name of Jesus Christ is invoked not just as the name of the deity to whom prayer is offered, but in other ways as well. For example: on March 24, 2005, Rep. Sampras, in referring to Easter Sunday, prayed that: those of us that are of the Christian faith, we thank you for the sacrifice that this weekend will represent. We thank you especially for what Sunday represents, resurrection and new life. on April 5, 2005, Rev. Agassi noted that: I thank you for our Lord and savior Jesus Christ, that we might have the right to come together in love. on April 18,2005, Rep. Federer stated that: And now Lord we ask it in your sons name, who is Lord of Lord, King of Kings, Jesus Christ, who gave us the most precious gift. To die on the cross on our sins. on April 20, 2005, Rep. Graf stated in her prayer: Lord thank you most of all for your son Jesus, and the gift of salvation. on April 29, 2005, Rev. Evert said that: As a minister of the gospel, I exercise my right to declare this room a hallowed place. I invite into this room, into the proceedings of the day, into the decisions that will (sic) made today, to each person, the mighty Holy Spirit of God. Holy Spirit, give these here the mind of Christ. The Invocation of February 21, 2004, mentions the Hebrew name of God, known as the Tetragrammaton, which is never mentioned aloud by Jews. Although the purpose for the Invocation is to solemnize each legislative meeting day, many of the prayers given in 2005 refer to matters and persons other than, or in addition to, the Independence House of Representatives. For example: on January 6, 2005, Pastor Vicario offered a prayer for, among others, tsunami victims, the United States, the president and his men and women who serve with him, as well as the Free Staters here in Independence. on January 19, 2005, Father Hewitt offered his prayer for those living in the fringes, the homeless, the imprisoned, those with addictions. on January 25, 2005, Rev. Courier prayed for, among others our president, and go and be with those boys, women and men on the battlefield who keep this state and this country of ours free. on February 1, 2005, Pastor Collins thanked God for the free elections in Iraq as well as your protection and care for our military men and women there and around the world who are standing in defense of our freedom. on February 14,2005, Rep. McEnroe prayed for this state we call Independence. We pray your blessing upon each and every one the liberties and freedoms we have are truly from you. on March 17, 2005, the prayer offered by Pastor Connors extended to our soldiers who are risking their lives to provide for ours as well as to the president, our governor and our mayor. on March 22, 2005, Pastor Ile offered prayers, for among others, Villas police officers serving in Iraq. on March 28, 2005, Dr. Cochet prayed: We look 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. On April 5, 2005 following the prayer and the Pledge, the Speaker of the House reintroduced Rev. Newcombe who had given the Invocation. The Speaker stated that Rev. Newcombe is going to bless us with a song. The cleric proceeded to sing Just a Little Talk with Jesus as a number of the legislators stood, clapped, and sang along with the minister. A number of legislators reported that they walked out in protest in response to the song. At no time following the delivery of his or her Invocation was any cleric or Representative admonished, corrected or advised in any way about the religious content of the Invocation. The Speaker of the House plans, in the 2006 legislative session, to continue the practice of having Invocations at each session and there are no plans to change how the Invocations are given, who gives them, or what those persons are told before they give the Invocation by the Speaker or any other person associated with the House of Representatives. The future sessions of the House will be available via the internet. Once the House is in session, only members or employees of the General Assembly, members of executive or judicial branches, employees of the Legislative Services Agency, or members of the news media are allowed in the hall of the House. (Rules, Part 11.14). The one exception to this is for members of the general public who are seated in the galleries in the House. The galleries consist of a balcony above the House chamber itself that can seat between 75-100 people. During the session the gallery is open and citizens of all ages frequently enter to observe the proceedings of the House below. There is a doorkeeper, employed by the House, who controls the traffic entering and leaving the balcony during the Invocation or Pledge of Allegiance. In order to control the noise from outside of the balcony entering the House chambers, the doorkeeper will not let people into the balcony during the Invocation or the Pledge and will try to discourage people from leaving the balcony during the Pledge or Invocation. However, if a person indicates that he or she objects to the prayer or Pledge or if the individual expresses a desire to leave immediately, the individual will be allowed to leave. In addition to hearing the sessions of the Independence House by attending and watching from the gallery or viewing the web cast, the proceedings in the House chamber may be heard via a loudspeaker that is hung over a window that looks into the House chamber. The loudspeaker is hung on the outside of the window in the hallway of the Statehouse that passes in front of the House chambers. To the extent that the prayers mention Jesus, Christ, or Son, in relation to God or Savior, the invocations are obviously sectarian and are Christian in orientation. A prayer that mentions the name of God that no Jew says aloud or which refers to the Christian concept of Grace is also sectarian. B. The Plaintiffs Fred Perry is an Independence taxpayer and resident of Marion County, Independence. He is a Quaker and has been employed as a lobbyist for the Independence Friends Committee on Legislation. On March 6 and March 22, he was positioned in the hallway outside of the chambers and listened to the prayers through the loudspeaker. Mr. Perry stayed near the window so he could watch to see if legislators were coming or going from the session. In his position as lobbyist, he also reviewed a number of the session dates via the internet. As a lobbyist, he deemed it to be important to listen to the prayers, as well as the debates on the particular bills that he was monitoring. It was essential, as a lobbyist for the Quakers, that he listen to the prayers and report about them to the Executive Board of the Independence Friends Committee on Legislation. He found the prayers to be disturbing because there were dominantly Christian and were exclusive, rather than inclusive, which he deems inappropriate for the setting of the Independence House of Representatives because, in his estimation, when a person offered the prayer it was endorsed by the State of Independence. He is not interested in eliminating legislative prayer; he is instead trying to insure that the prayers are not all in one direction. Mr. Perry objects to his tax dollars supporting sectarian prayer. Moreover, while this action is pending he has been asked to stand aside as the lobbyist by the Independence Friends Committee on Legislation. He is still performing administrative duties, but will not appear in the General Assembly as a lobbyist while this case is pending. However, if sectarian prayers are allowed to continue in the House he will not return as a lobbyist, even after this litigation is over. Rev. Jack Kramer is a retired Methodist cleric and an Independence taxpayer. He believes that prayer in a public setting should be ceremonial and should be done on behalf of all the people. The problem with the prayers in the Independence House is that there are ways of offering the prayers that would be more representational of all people in Independence and that would be spiritually courteous. He objects to his tax dollars sponsoring these types of prayers. Kenneth Rosewall is a lawyer and Executive Director of the Independence Civil Liberties Union. In this litigation, however, he is solely a plaintiff who wishes that the prayers in the House of Representative no longer advance one particular religion over another. He deems the prayers to be government speech inasmuch as they are delivered on the floor of the House and are given with the approval of the Speaker as part of the Houses agenda. As an Independence taxpayer he objects to his tax monies being spent for what he believes to be an unconstitutional practice. Doris Hart is also an Independence taxpayer. She objects to her tax dollars being used to support sectarian prayer. And, for her, the purpose of the lawsuit is to bring about non-sectarian prayer in the General Assembly rather than to eliminate all prayer. She also noted that legislative prayers should be pertinent to the group they are being delivered to and not mention extraneous subjects such as the Indepolis Great Race, people at home or the war in Iraq. Although she has not been at the General Assembly, she did view three of the payers on the website and wrote a letter to the Speaker and the Indepolis Star concerning the prayers. She is asking that the prayers in the Independence House conform to constitutional standards. II. Analysis A. Standing It is, of course, axiomatic that the limitation on federal courts contained in Article III of the United States Constitution that only case or controversies be heard means that plaintiffs must allege a judicially cognizable and redressable injury in order to pursue a lawsuit. Doe ex rel. Doe v. School District, City of Norfolk, 340 F.3d 605 (8th Cir. 2003) (internal citation omitted). And, in order to establish standing the plaintiffs must have suffered an injury in fact an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of ... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. United States v. Hays, 515 U.S. 737, 742 (1995) (internal citation omitted). Generally a plaintiff may not allege injury solely because he or she is paying taxes which support a practice to which the taxpayer objects. Frothingham v. Mellon, 262 U.S. 447, 487 (1923). But, in Doremus v. Board of Education of Borough of Hawthorne, 342 U.S. 429, 435 (l952), the Court found that a taxpayer was injured, and therefore had standing, to challenge an alleged establishment clause violation, when it is a good-faith pocketbook action...a direct dollars-and-cents injury. Thus, taxpayers have standing to challenge tax dollar expenditures that allegedly contribute to Establishment Clause violations. Flast v. Cohen, 392 U.S. 83 (1968). Gonzales v. North Township of Lake County, Indiana, 4 F.3d 1412, 1416 (7th Cir. 1993) (referring to municipal taxpayer standing); see also Freedom from Religion Foundation, Inc. v. Bugher, 249 F.3d 606, 610 (7th Cir. 2001) (referring to the standing of state taxpayers. Plaintiffs have met the standing requirement by showing that as taxpayers their tax dollars have gone to support an allegedly unconstitutional program.) The key, therefore, to taxpayer standing for a State taxpayer is that, a plaintiff must not only show that he pays taxes to a relevant entity, he must also show that tax revenues are expended on the disputed practice. Doe v. Duncanville Independent School District, 70 F.3d 402, 408 (5th Cir. 1995). Of course, the amount of money involved, the plaintiffs share of the challenged expenditure, is tiny. But, these injuries, however slight, are indeed judicially cognizable. As the Supreme Court stated, An identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation. United States v. SCRAP, 412 U.S. 669, 689 n. 14 . . . (1972). Harris v. City Zion, Lake County, 1llinois, 927 F.2d 1401, 1406 (7th Cir. 1991), cert. denied, 505 U.S. 1229 (1992). Given that a taxpayer must demonstrate only that he or she has paid taxes to the governmental entity and the governmental entity has used tax revenues on the disputed practice, there is no requirement that a taxpayer demonstrate that her tax burden will be lightened by elimination of the questioned expenditure. Cammack v. Waihee, 932 F.2d 765 (9th Cir. 1991). Colorado Taxpayers Union, Inc. v. Romer, 963 F.2d 1394, 1400 (10th Cir.l992), cert. den., 507 U.S. 949 (1993). A contrary view would restrict taxpayer standing to only those situations: where a special tax assessment was levied to pay for the expenditures. Thus, when expenditures are made from general funds, no one would be able to challenge establishment clause violations. We believe that taxpayer standing was created to specifically permit the airing of establishment claims, and we decline to effectively abolish it. Minnesota Federation of Teachers v. Randall, 891 F.2d 1354, 1358 (8th Cir. l989). A contrary view would also lead to absurd results. For example a State could pass a law that provided for the erection, at taxpayer expense, of a cross or, if successfully challenged in court, a secular monument for the same cost. It could then defend against a taxpayer challenge by arguing that there was no additional expenditure for a religious purpose because, if not for the erection of the cross, there would be the identical expenditure for a secular monument. The taxpayer does not have to show that her taxpayer burden will be diminished if she prevails; it is enough to show that tax dollars are supporting a practice which allegedly violates the Establishment Clause. Of course, standing as a taxpayer is not the only way that a plaintiff may attain standing in an Establishment Clause case. The Seventh Circuit has made it clear that a plaintiff in such a case has standing if he demonstrates: he has undertaken a special burden or has altered his behavior to avoid the offensive object. See, e.g., Freedom from Religious Found., 203 F.3d at 489 (avoids using the park): Gonzales v. North Township, 4 F.3d 1412, 1416-17 (7th Cir. 1993) (avoids area of the park); Harris v. City of Zion, 927 F.2d 1401, 1405 (7th Cir. 1991) (alters travel routes): Doe v. Village of Crestwood, 917 F.2d 1476, 1478 (7th Cir. 1990) (will stay away festival): American Civil Liberties Union v. City of St. Charles, 794 F.2d 265, 269 (7th Cir. 1986) (alters behavior by detouring); Doe v. Small, 726 F.Supp. 713, 718-19 (N.D.Ill. 1989) (revd en banc on other grounds, 964 F.2d 611 (7th Cir. 1992) (avoids using park). Books v. City of Elkhart, 235 F.3d 292, 299 (7th Cir. 2000), cert. den., 532 U.S. 1058 (200 1). Additionally, plaintiffs may have standing if they are forced to come into direct and unwelcome contact with the challenged religious display or practice while engaged in their daily activities. Books, 235 F.3d at 300. See also, e.g. Newman v. City of East Point, 181 F.Supp.2d 1374, 1377 (N.D.Ga. 2002). It is clear that there are costs associated with the prayers given in the House of Representatives. The clerics receive a letter, paid from taxpayer funds appropriated by the Independence General Assembly. They may receive photographs and thank-you letters, also paid from the same taxpayer funds. And, the prayers carry a further cost for, regardless of whether they are given by a cleric or a legislator, each minute of the prayer costs approximately $1.88 a minute in web-streaming costs. Therefore, tax money is being spent directly on the challenged practice. Admittedly, these are not major costs. However, as indicated above, the amount of the tax revenue going to support a disputed practice is not consequential when standing in an Establishment Clause claim is predicated on taxpayer status. It is enough for plaintiffs to show that tax money is spent on the disputed practice. Freedom from Religion Foundation, Inc., 249 F.3d at 610. In Chambers v. Marsh, 675 F.2d 228 (8th Cir. 1982), revd on other grounds, 463 U.S. 783 (1983), the Court specifically found that the legislator plaintiff had standing to challenged the practice of legislative prayer not just because of his status as a legislator but because he was a taxpayer. A taxpayer clearly has standing to challenge the expenditure foundation of such a practice because of the nexus between his taxpayer status and the Establishment Clause claim. 675 F.2d at 231. Although the Supreme Court reversed the Court of Appeals conclusion as to the merits of the constitutionality of legislative prayer, the Court agreed as to the conclusion that taxpayer standing was present. The Court noted simply that we agree that Chambers, as a member of the Legislature and as a taxpayer whose taxes are used to fund the chaplaincy, has standing to assert this claim. Marsh v. Chambers, 463 U.S. at 786, n. 4. The four plaintiffs in this case are all state taxpayers. They are not, as in Marsh, funding a chaplaincy, but the evidence is clear that tax monies are being spent on the challenged practice. They therefore have standing to mount this challenge as taxpayers. B. The Independence Practice is Not Constitutional 1. Introduction The traditional test to measure a claimed violation of the Establishment Clause is set out by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971), and states that governmental involvement with religion is constitutional only if 1) it has a secular purpose; 2) its principal effect neither inhibits nor advances religion, and 3) it does not foster excessive entanglement with religion. 403 U.S. at 6 12-13. Governmental action violates the Establishment Clause if it fails to satisfy any of these prongs. Edwards v. Aguillard, 482 U.S. 578, 583 (1987). The Supreme Court has, on occasions, refined the first two Lemon factors into an endorsement test. See e.g., Capital Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995); County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989). Under this test, the effect prong asks whether, irrespective of governments actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. Freedom from Religion Foundation v. City of Marshfield, Wisconsin, 203 F.3d 487, 493 (7th Cir. 2000) (quoting Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (OConnor, J., concurring). However, in Marsh v. Chambers, the Court did not utilize Lemon or the endorsement analysis to assess the validity of Nebraskas practice of opening each legislative session with a nonsectarian prayer led by a chaplain paid with public funds. Instead, the Court concluded that the unique history of legislative prayer, which had been present in the first Congress and had continued unabated since that time in Congress and many states, compelled the conclusion that there was no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged. 463 U.S. at 791. Therefore, the Court concluded that to invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an establishment of religion. 463 U.S. at 792. In explaining the particular circumstances of the prayers in Marsh, the Court stressed that the prayers at issue did not proselytize or advance any one, or . . . disparage any other, faith or belief 463 U.S. at 795-96. The prayers were non-sectarian, were not explicitly Christian, and made no reference to Christ. 463 U.S. at 793, n. 14. 2. Under either Marsh or Lemon, Prayers Must be Non-Sectarian The importance of the non-sectarian nature of the particular legislative prayers in the determination that they do not violate the Establishment Clause was emphasized by the Court in County of Allegheny v. American Civil Liberties Union, 492 U.S. at 603, where the Court noted that: However history may affect the constitutionality of nonsectarian references to religion by the government, history cannot legitimate practices that demonstrate the governments allegiance to a particular sect or creed. 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. Id. [Marsh], at 793... n. 14. (footnote omitted). Justice OConnor, in her concurrence in County of Allegheny, stressed that the non-sectarian nature of legislative prayer, combined with its longstanding existence, was essential to her conclusion that it was not unconstitutional. 492 U.S. at 630-31 (OConnor, J., concurring). Thus Marsh allows legislatures to acknowledg[e], in some relatively modest and nonintrusive ways, some role for spiritual values in their work. Van Zandt v. Thompson, 839 F.2d 1215, 1219 (7th Cir. 1988). But, the outer boundary is clear, the prayer must be non-sectarian. The genre approved in Marsh is a kind of ecumenical activity that seeks to bind peoples of varying faiths together in a common purpose. That genre, although often taking the form of invocations that reflect a Judeo-Christian ethic, typically involves nonsectarian request for wisdom and solemnity, as well as calls for divine blessing on the work of the legislative body. When a legislative body prevents its agents from reciting a prayer that falls outside this genre, the legislators are merely enforcing the principle in Marsh that a legislative prayer is constitutional if it is simply a tolerable acknowledgement of beliefs widely held among the people of this country. Snyder v. Murray City Corporation, 159 F.3d 1227, 1234 (10th Cir. 1998), cert. denied, 526 U.S. 1039 (1999) (finding that city council did not violate the Establishment Clause because it rejected a citizen wishing to deliver an invocation which fell outside the accepted genre of legislative prayer.) The fact that sectarian prayer in a legislative setting is not constitutionally permissible was emphasized in Wynne. There the Town Council opened with prayers lead by one of the council members and the prayers frequently referred to Jesus, Christ or Savior. 376 F.3d at 294. The Court found that: [t]he prayers challenged here stand in sharp contrast to the prayer held not to constitute an establishment of religion in Marsh. In Marsh the approved prayer was characterized as non-sectarian and civil; indeed, the chaplain had affirmatively removed all references to Christ. Here, on the other hand, the prayers sponsored by the Town Council frequently contained references to Jesus Christ, and thus promoted one religion over all others, dividing the Towns citizens along denominational lines. 376 F.3d at 298-99. The Court rejected the Towns argument that the prayers were in the Judeo-Christian tradition inasmuch as that term is defined as something which has historical roots in both Judaism and Christianity and [t]he prayers sponsored by the Town Council have invoked a deity in whose divinity only those of the Christian faith believe. 376 F.3d at 300. (Courts emphasis and internal quotation marks omitted), The Court in Marsh indicated that a prayer that advances one religion over another or proselytizes is unconstitutional. 463 U.S. at 795-96. The Court in Wynne noted that even if the Councils prayers were not deemed to proselytize, to attempt to convert persons, they certainly sought to advance one religion over another inasmuch as to advance a religious belief means simply to forward, further, [or] promote the belief. Websters Third New International Dictionary 30, 1821 (3d ed. 1993). Id. Indeed, this is the interpretation the Supreme Court gave to Marshs proscription in Allegheny where, as indicated above, it explained that legislative prayers are prohibited if they have the effect of affiliating the government with any one specific faith or belief Allegheny, 492 U.S. at 603. The Court in Wynne also rejected the Councils argument that the prayers were only for the benefit of the Council members, all of whom were Christian, by noting that the prayers were on the Councils formal agenda, the meetings were opened to citizens, and many of the prayers were directed not just to the Council but to other matters as well. 376 F.3d at 301, n. 7. Thus, in a very real sense, the Town Council has directed the Christian prayers at and thereby advanced Christianity tothe citizens in attendance at its meetings and the citizenry at large. 376 F.3d at 301. n. 7. Given all this the Court concluded that: The invocations at issue here, which specifically call upon Jesus Christ, are simply not constitutionally acceptable legislative prayer like that approved in, Marsh. Rather, they embody the precise kind of advance [ment] of one particular religion that Marsh cautioned against. Accordingly, we hold the district court did not err in finding that the challenged prayers violated the Establishment Clause and enjoining the Town Council from invoking the name of a specific deity associated with any one specific faith or belief in prayers given at Town Council meetings. 376 F.3d at 30 1-02. A similar conclusion was reached in Rubin. There the City of Burbank had a longstanding practice of inviting a member of a local ministerial association that included non-Christians, to deliver an invocation at the beginning of each council meeting. 124 Cal.Rptr.2d at 869. On November 23, 1999 a prayer was given which prayed in the name of Jesus Christ and suit was brought to enjoin such prayers in the future. Id. The Court recognized, of course, that the controlling authority was Marsh, However, the Court noted that [I]t cannot reasonably be argued that the prayer here, with a specific reference to Jesus Christ, is on the same constitutional footing as the prayer before the court in Marsh, from which all reference to a specific religion has been excised. 124 Cal.Rptr.2d at 872. After reviewing Marsh and Allegheny the Court concluded that: [t]he reference to Jesus Christ in the invocation violated the Establishment Clause. The City argues that because only about 20 percent of the volunteers providing the legislative prayer mentioned Jesus Christ in the invocation, it is clear that the prayer opportunity was not being exploited to advance or disparage any one faith or belief. This argument promotes a test that unless a certain incidence of unconstitutional prayer is proven, it cannot be established that one religious belief or faith is being proselytized or advanced over another. We disagree. Rather, we interpret Marsh to mean that any legislative prayer that proselytizes or advances one religious belief or faith, or disparages any other, violates the Establishment Clause. 124 Cal.Rptr. at 873. The court therefore approved of the trial courts injunction which prevented sectarian prayer from being delivered at the meetings and which required those giving the prayers to be so informed. 124 Cal.Rptr. 868. As is indicated above, fully 29 of the 45 Invocations for which there is a transcript indicate that they are given in the name of Jesus, Christ, Savior or the Son. Many of the Invocations contain Christian content that is completely unrelated to blessing the Independence House. Indeed, many of the prayers are pointed not to, or just to, the House, but to Independence and the world in general. The prayers clearly advance Christianity to the point where a number of the Invocations specifically thank Christ for his death and resurrection. The Supreme Courts acceptance in Marsh of the practice of nondenominational prayers designed to invoke Divine guidance on a governmental body cannot be interpreted to allow these prayers which are much more than a tolerable acknowledgement of beliefs widely held among the people. Marsh, 463 U.S. at 792. These prayers advance one particular religion and religious belief system. This goes far beyond Marsh and is unconstitutional. The House Invocations therefore do not pass the constitutional muster demanded by Marsh. It is therefore axiomatic that the prayers fail the more rigorous standards required by Lemon and the endorsement test. See, e.g., Marsh, 463 U.S. at 796 (Brennan, J., dissenting) (I must begin by demonstrating what should be obvious that, if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause.) Lemon asks first if there is a legitimate secular purpose. This is not a toothless standard and requires an inquiry to assure than any articulated secular purpose is not a sham, and not merely secondary to a religious objective. McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, supra. Given that the prayers here are sectarian a court could only conclude that they have a sectarian, not secular purpose, regardless of the articulated purpose of the Speaker of the House. When a state-sponsored activity as an overtly religious character, courts have consistently rejected efforts to assert a secular purpose for that activity, Indeed, we have emphasized that an act so intrinsically religious as prayer cannot meet, or at least would have difficulty meeting, the secular purpose prong of the Lemon test.... And we have also recognized the obvious, that recitation of a prayer is undeniably religious and has, by its nature, both a religious purpose and effect. Mellen v. Bunting, 327 F.3d 355, 373 (4~ Cir. 2003), cert. den., 541 U.S. 1019 (2004) (Supper prayer at state operated military college violates the First Amendment). Indeed, [p]rayer is perhaps the quintessential religious practice for many of the worlds faiths. Karen B. v. Treen, 653 F.2d 897, 901 (5th Cir. 1981). Regardless of purpose, sectarian legislative prayer cannot satisfy the effects prong as modified by the endorsement test. The inquiry here is whether irrespective of governments actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. Books v. Elkhart County, Indiana, 401 E.3d 857, 866 (7th Cir. 2005). (internal citation and quotation marks omitted). Given that sectarian prayers are being delivered at the seat of governmental power in Independence, a reasonable observer, aware of the history and context of the community and forum in which the religious display appears, would fairly understand the display to be a government endorsement of religion. Id. (internal citation and quotation marks omitted). If a reasonable observer would perceive a crche sitting silently in a government building, or statute of Christ sitting in a park, as an endorsement, Freedom from Religion Foundation, Inc. v. City of Marshfield, Wisconsin, supra, the same reasonable observer would conclude that sectarian prayer delivered at the start of the session of the Independence House of Representatives was an endorsement as well. Although Marsh sets up a test that is more deferential towards the possibility that legislative prayer is constitutional, it certainly does not compromise the Supreme Courts clear stand that: [w]hatever else the Establishment Clause may mean (and we have held it to mean no official preference even for religion over nonreligion ...) it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). III. Conclusion The current practice of delivering sectarian prayers is therefore unconstitutional. We therefore REVERSE the District Court and remand the case for entry of an injunction to enjoin the defendant Speaker of the House to take all steps necessary to stop the practice of the delivery of sectarian prayers. Smith-Court, J. concurs. IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT APPEAL NO. 78X27  FRED PERRY, et al. Plaintiffs Appellants v.Appeal from the United States District Court, District of IndependenceDONALD BUDGE, et alDefendants Appellees.  Dissenting Opinion  LaCoste, J., dissenting: I dissent from the majoritys decisions both as to standing and as to the merits of the case. My view is that taxpayer standing is not present and that Perry has no cognizable Article III injury. On the merits, the Independence House prayers, sectarian prayers and all, are well within the mainstream of American civic life. Inviting clergy from multiple faiths to offer what may be a sectarian prayer, in fact, is the tradition of the United States House and Senate, and at presidential inaugurations. This is not a situation where the House or the Speaker insists on Christian prayer (or sectarian prayer of any type), or where clergy from non-Christian faiths are excluded. Rather, clerics are welcome to offer a prayer regardless of faith, consistent with practices upheld elsewhere. I. Additional Facts I begin by emphasizing certain facts about the practices being challenged. It is important to note that, unless he sponsors the cleric himself, Speaker Budge typically does not learn the identity of the cleric who will provide the invocation on any particular day until just before he takes the floor to introduce and invite the cleric to the Speakers stand. Neither Budge nor anyone else associated with the House typically learns the planned content of the invocation before the cleric or representative delivers it on the floor of the House. Budge has never censored a House prayer or admonished anyone as to the content of a House prayer. Now, I turn to the facts relevant to the plaintiffs in this suit. As to Mr. Perry, he listened to the prayers while in attendance at the House only twice during the 2005 legislative session: on March 22, 2005, and on April 6, 2005. Perry says, I do not remember the specific prayers from other days, perhaps because I was not in attendance at the moment of prayer. He could not recall the content of the March 22, 2005, prayer and could only recall that the April 6 prayer was the day of redemption coming at the end, or something like that. Mr. Perry became a plaintiff in this lawsuit after being invited to do so by a law professor on behalf of the Independence Civil Liberties Union. Tellingly, in my view, Mr. Perry claims standing to bring this case based on his taxpayer status. Perry stated, I understand that...for this lawsuit were talking about the...expense of the prayer, but it is the effect of the prayer that Im worried about, not the expense. In any event, he acknowledged that there is no marginal taxpayer cost for the allegedly sectarian legislative prayers that he finds offensive. He reiterated that his argument was not with legislative prayer generally, but with sectarian legislative prayer Rev. Kramer, a retired minister, has attended the Independence General Assembly only once, many years ago, and does not remember anything that was done or said during that visit. He also said that, though he has access to the Internet, he has not reviewed any of the Independence House prayers over the Internet. Only later did Kramer review a summary of some of the prayers that are listed in the Complaint. Like Rev. Kramer, Ms. Hart says that the primary effort of this lawsuit is to bring about nonsectarian prayer at the Independence General Assembly. Her standard for whether a prayer was offensively sectarian was whether it mentioned Jesus or Savior. However, Hart also said she believes that other common religious terms are improperly sectarian, including a deity, a god or a father figure. When asked what definition of prayer should be acceptable in this context, Hart replied, a time that is taken aside from the usual activities...of the event. [P]robably calling for silence. She also spoke approvingly of prayer given Quaker style meaning just silence.... Hart acknowledged that communication with something other than oneself could be part of the meaning of prayer, but when asked whether she was comfortable with such communicative prayer in the General Assembly, she said I would look for a moment of silence. Hart also believes that there should be standards or guidelines for legislative prayer. Plaintiff Kenneth Rosewall is the Executive Director of the Independence Civil Liberties Union. Rosewall has never been in the Independence House of Representatives during a prayer. Rosewall would limit legislative prayers to those that would not advance one particular religion over another and for guidance would refer to precedent in all of our communities, particularly prayers that refer to beliefs in a much more broad way than most of the prayers that I heard . . . started [at] the Independence House of Representatives session. When asked to reduce that statement to a legal rule, Rosewall a lawyer stated, I would leave it to the courts to decide what that is. Rosewall acknowledges that there is no marginal taxpayer cost for the allegedly sectarian legislative prayers that he finds offensive. II. None of the Plaintiffs Has Standing to Bring This Challenge Each plaintiff asserts standing as a taxpayer. While taxpayer standing sometimes exists under Article III in Establishment Clause cases, it is treated as a species of direct injury, not a substitute for it. When, as here, there is no marginal governmental expense owing to the challenged conduct and no genuine request to stem government spending, there is no taxpayer standing. The Supreme Court has ruled that cognizable Article III injury to taxpayers may occur when government spends money in contravention of the Establishment Clause. See Flast v. Cohen, 392 U.S. 83, 102-03 (1968); Doremus v. Board of Education of Borough of Hawthorne, 342 U.S. 429, 434-35 (1952). State taxpayers may bring a good-faith pocketbook action when they have suffered a direct dollars-and-cents injury... Doremus, 342 U.S. at 434. However, state taxpayers do not have standing in Establishment Clause cases if they cannot show any marginal costs related to the objectionable government activity. See id. at 435; see also Friedmann v. Sheldon Cmty. School District, 995 F.2d 802, 803 (8th Cir. 1993) (relying on the Flast nexus test to hold that state taxpayers did not have standing to challenge graduation prayer because there was no proof of any marginal cost for the prayer). In this case, the Plaintiffs allege taxpayer standing because of the costs associated with legislative invocations generally in the form of letters, photographs and web-streaming. However, the Plaintiffs expressly disclaim any intention or desire to enjoin all legislative invocations, and each has stated that some specific invocations given during the 2005 term of the General Assembly did not injure them. The Plaintiffs acknowledge that the substantive content of an invocation has no impact on its marginal cost to taxpayers. Furthermore, the complaint does not seek an injunction against any sort of government spending in support of legislative invocations. The Plaintiffs instead request an injunction unrelated to government spendingthey wish to forbid Speaker Budge from permitting sectarian prayers (but not all prayers) prior to the start of each House meeting day. This is plainly not a good-faith pocketbook action, either factually or doctrinally. Doremus, 342 U.S. at 434. Doremus itself held that, because there was no marginal taxpayer cost at stake, taxpayers did not have standing to challenge the practice of reading from the Old Testament at the beginning of each public-school day. Id at 435. Plaintiffs argue that taxpayers have standing to sue whenever an alleged establishment of religion occurs while the government meter is running. But if that were true, the plaintiffs in Doremus would have had standing because the prayers at issue occurred in taxpayer-funded schools, the resources for which were being deflected from the educational program for which the taxes were raised. Doremus, 342 U.S. at 398 (Douglas, J., dissenting). The Seventh Circuit has, in cases that Plaintiffs themselves have cited, taken the taxpayer standing marginal cost requirement seriously. See Gonzales v. North Township of Lake County, Md., 4 F.3d 1412, 1416 (7th Cir. 1993) (no taxpayer standing to challenge a crucifix display in a public park even though taxpayer funds were used to maintain the areas around the crucifix because this cost would be incurred with or without the presence of the crucifix); Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1470 (7th Cir. 1988) (no municipal taxpayer standing where no tax money was spent on the allegedly unconstitutional activity of displaying a Ten Commandments monument in a public park); see also Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402,408 (5th Cir. 1995) (no taxpayer standing to challenge the distribution of Bibles at public school where it could not be proved that any tax revenue was expended on the disputed practice); Kurtz v. Baker, 829 F.2d 1133, 1140 (D.C. Cir. 1987) (no federal taxpayer standing to challenge the particular administration of the congressional chaplaincy program, as distinct from a challenge to the entire program itself). Nor does Chambers v. Marsh, 675 F.2d 228 (8th Cir. 1982), revd, 463 U.S. 783 (1983), support taxpayer standing in this case. There the plaintiff sued as a taxpayer as well as a member of the Nebraska Unicameral. Id at 231. But he not only had the added status of being a member of the legislature, he also challenged the entire practice of paying a chaplain to deliver legislative prayer, not simply the contents of a particular subset of prayers. Id at 230. Thus, the alleged violation did involve marginal taxpayer costs, and all of those payments could have been enjoinedand the practice stoppedif the plaintiff had prevailed. Again, Plaintiffs here expressly challenge only how invocations prior to the meetings of the Independence General Assembly are administered, not whether they may occur. Unlike in Marsh, there is no marginal cost for the practices they challenge, so there is no basis for taxpayer standing. III. Uncensored Sectarian Legislative Invocations Do Not Violate the Establishment Clause A. The History of Legislative Prayer Beginning prior to the American Revolution and continuing through the Founding and today, legislative bodies in America have offered what plaintiffs describe as sectarian prayers to invoke Divine guidance prior to the opening of legislative sessions. The Continental Congress frequently sprinkled its proceedings liberally with the mention of God, Jesus Christ, [and] the Christian religion. Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 2 17 (1986). This practice continues in both the United States House of Representatives and the United States Senate. Opening prayers of Congress have included the names See, e.g., 151 Cong. Rec. H8737-0 I (2005) (*** I pray this with all respect for persons of other faiths. I pray this in the name of my savior, Jesus Christ. Amen.); 146 Cong. Rec. S11317-01 (2000) (*** And so we accept Elijahs challenge: Choose this day whom You will serve, and Jesus mandate: Set your mind on Gods kingdom above everything else!-Matthew 6:33; NEV. In His powerful name. Amen.); 118 Cong. Rec. 31,793 (1972) (God of our Lord Jesus Christ, we thank Thee for blessing and prospering our land .... We look forward to the coming of our Lord and His kingdom In the name of our Lord who died that we might live. Amen.); 107 Cong. Rec. 10,662 (1961) (O merciful Savior, inspire us all to outthink, outdo, and outlove Thine enemies who are ours, and keep us aware of Thy everlasting presence. Free us, Divine Master, we pray 1937, Inaugural prayers have frequently been sectarian, with references to Jesus Christ our Lord and The Father Son and the Holy Ghost. See Newdow v. Bush, 355 F. Supp. 2d at 265, 286-87 (D. D.C. 2005). Independence has its own long history of opening legislative sessions with prayer. See Journal of the Independence House of Representatives -- Session at Roland-Garros 1817-1818, 3 (The Rev. B. Adams ... came in, performed divine service by solemn prayer, and then withdrew.). While Independence House prayers were not recorded before 2005, governments in other states have recorded invocations containing sectarian prayer for far longer. Illinois has prayer dating from 1869, 2 Debates and Proceedings of the Illinois Constitutional Convention 1299 (1869) (Rev. Lombard *** Forgive us our sins, lead us to Thy truth, and at last bring us all to worship and adore Thee above, through Jesus Christ our Lord and Savior. Amen.), while Missouri began a September, 2005, session with the prayer, As we return home, may Your Holy Spirit show us how we are to be Good Samaritans, continuing to help those displaced by disasters and others who are reduced to poverty. We pray to You, Almighty God, living and reigning forever. Amen.). B. Marsh v. Chambers In view of this deeply rooted American tradition, the Supreme Court in Marsh v. Chambers, 463 U.S. 783, 792 (1983), held that opening legislative sessions with prayer is permissible because it has become part of the fabric of our society. Legislative prayer, the Court ruled, does not pose a threat of government sponsored religious indoctrination on the population because adults are not readily susceptible to coercion. Id. Accordingly, the Court held that invocations prior to legislative meetings are not even a step towards an establishment of religion, but are rather a tolerable acknowledgment of beliefs widely held among the people of this country who are a religious people whose institutions presuppose a Supreme Being. Id. (internal citation omitted). In upholding legislative prayers generally, Marsh warned against judging individual prayers based on their content: The content of the prayer is not of concern where ... there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or ... disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer. Marsh, 463 U.S. at 794-95 (1983). Thus, only where the legislature exploits the opportunity to proselytize, advance, or disparage any faith or belief may the content of any particular prayer be questionable under the Establishment Clause. Marsh gave no indication that mere mention or invocation of a sectarian deity or belief would unconstitutionally advance one religion or disparage another. To be sure, before Marsh was decided the Nebraska Chaplain removed a reference to Jesus from his prayer. Id. at 793 n. 4. But the Court only referred to that fact in an offhand footnote and in no way relied on it to declare legislative prayer a priori permissible under the Establishment Clause. The Court instead relied on centuries of traditional legislative prayers that did mention Jesus as well as other sectarian deities and beliefs.4 It is distortion to construe Marsh as casting doubt over sectarian legislative prayer. See id. at 823, n. 2 (Stevens, J., dissenting) (remarking that the majority perhaps declined to evaluate the content of particular prayers because it would be unable to explain away the clearly sectarian content of some of the prayers given by Nebraskas chaplain). Nor does County of Alleghany v. American Civil Liberties Union, 492 U.S. 573 (1986), forbid sectarian language in legislative prayers. In limited dictum addressing the sui generis status of legislative prayer, Allegheny cited Marsh for the unremarkable proposition that the unique history of legislative prayer can [not] justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief Id. at 603. Allegheny then, like Marsh, remarked offhand that the Nebraska prayer did not cause such affiliation because the Chaplain removed a reference to Jesus. Id. But this at most confirms what Marsh already tells usthat a legislative prayer delivered by the same government-paid chaplain every day will find safe harbor from Establishment Clause objections if it does not mention Jesus. Rather than commanding removal of all references to Jesus from legislative prayer, particularly where multiple clergy of varying creeds take turns offering the prayer, both Allegheny and Marsh hold that courts should be concerned with the broader context and circumstances surrounding the prayer. See Allegheny, 492 U.S. at 598-60; Marsh, 463 U.S. at 792-96. C. Other Case Law A survey of the current case law supports this view. Only a few months after Marsh was decided, the en banc D.C. Circuit dismissed, for want of a substantial federal question, a case challenging the payment of tax money to fund congressional prayers,. Murray v. Buchanan, 720 F.2d 689,690 (D.C. Cir. 1983) (per curiam), reversing Murray v. Morton 505 F.Supp. 144, 145 (D. D.C. 1981) (outlining relief requested in the complaint). The plaintiffs specifically argued that, unlike the prayers in Marsh, the Senate Chaplains prayers were unconstitutional because they systematically advance[d] a particular religious viewpoint. In fact, the Senate Chaplain invoked Christ and referred to Christian tenets in some of the prayers plaintiffs cited to the court (though the plaintiffs did not quote such references). Id at 7 (citing 129 Cong. Rec. S5187 (April 26, 1983), which prayer ends with, [w]e pray in the name of Jesus, Savior and Lord. Amen.). Notwithstanding this argument and the sectarian nature of congressional prayers, Murray remarked that [w]e perceive no tenable basis for a claim that the very congressional practice deliberately traced by the Court in Marsh should be subject to further review. Murray, 720 F.2d at 690. More recently, in Newdow v. Eagen, 309 F.Supp.2d 29 (D. D.C. 2004), the court dismissed another request to declare invalid Congress legislative prayer and use of paid chaplains. Among other things, Newdow sought to enjoin the congressional chaplain defendants from espousing particular religious dogma. Id. at 33. The court relied on Marsh to reject Newdows claim in its totality, saying that Marsh has either expressly or impliedly rejected Newdows Establishment Clause claim on the merits. Id. at 39. Thus, in light of Marsh, Congress prayers appear to be invulnerable to Establishment Clause challenges, notwithstanding that they are frequently sectarian with references to Jesus Christ. See Newdow v. Bush, 355 F.Supp. 2d 265, 285 n. 23 (D. D.C. 2005) (discussing Murray and Eagen and observing [n]either of these cases discusses the point, but it is notable that the legislative prayers at the U.S. Congress are overtly sectarian). See also Kurtz v. Baker, 829 F.2d 1133, 1147 (D.C. Cir. 1987) (Ginsburg, J., concurring) (The prayer practice that has existed in legislative assemblies in the United States for more than 200 years [citation omitted] ... is not subject to constitutional assault given the High Courts recent and resounding declaration.). In addition, the Tenth Circuit understands Marsh not to require censorship of all sectarian references in prayers by legislative bodies. In Snyder v. Murray City Corp., 159 F.3d 1227 (10th Cir. 1998) (en banc), the court ruled that a city council could, consistent with the Establishment Clause, refuse to permit a disparaging and proselytizing invocation. Taking account of both Marsh and Allegheny, the Tenth Circuit observed that the kind of legislative prayer that will run afoul of the Constitution is one that proselytizes a particular religious tenet or belief or that aggressively advocates a specific religious creed, or that derogates another religious faith or doctrine. Id., at 1234 n. 10 (emphasis added). Specifically addressing what it means to advance a particular faith under Marsh, Snyder observed that all prayers advance a particular faith or belief in one way or another. Id (emphasis added). Accordingly, for the Snyder court, Marshs approval of Judeo-Christian, non-sectarian prayers only underscores the conclusion that the mere fact a prayer evokes a particular concept of God is not enough to run afoul of the Establishment Clause. Id Snyder understood Marsh to be concerned with an effort by the government to convert citizens to particular sectarian views. Id (emphasis added). Indeed, the proposed prayer at issue in Snyder was permissibly rejected by the council because it sought to persuade its hearers of the righteousness of a particular viewpoint. Id at 1236. Even more recently, the D.C. District Court refused to grant a preliminary injunction against Christian prayer at the presidential inauguration, and ruled that Marsh permits sectarian government prayers if they do not proselytize. Newdow v. Bush, 355 F.Supp.2d 265,288-89 (D. D.C. 2005). According to Newdow, the long history of inauguration prayers shows that they have frequently been sectarian, with references to Jesus Christ our Lord and the Father, the Son . . . and the Holy Ghost. Id at 287. As did Snyder, Newdow took account of both Marsh and Allegheny and sided with the government because there had been no showing that inaugural prayer has been used to affiliate or proselytize under any reasonable definition of those words. Id at 288 (emphasis added). The court was particularly persuaded because Judaism and many different Christian denominations had been represented by clergy giving inaugural prayers over the years. Id Such acts were inconsistent with the idea that the government was exploiting the prayer to proselytize, the court ruled. Id Moreover, the injunction against proselytizing town council prayers in Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004), does not fairly implicate the non-proselytizing (even if sectarian) prayers that occur in the Independence House. Wynne presented a genuinely exploitative situation where a town council insisted upon invoking the name Jesus Christ to the exclusion of deities associated with any other particular religious faith. Id at 295, 301. Indeed, the council steadfastly refused to include other sectarian references in its prayers, including references to a deity specifically associated with Judaism. Id at 300 n.5. The record also made it clear that the councils prayer, which was typically given by the same person, was offered not only to invoke divine guidance for the council, but also for the towns citizens. Id at 301 n.7. This led the court to find that the council directed prayers at the community and thereby sought to advance Christianity in the community. Id A more recent case, Simpson v. Chesterfield County Board of Supervisors, 404 F.3d 276,283-84 (4th Cir. 2005), cert. denied, __ U.S. __ (2005), underscored the significance of Wynnes extreme circumstances. Simpson upheld a system whereby clergy from varying faiths and denominations could register to deliver a town councils opening invocation. Id at 285-86. The court distinguished Wynne in part by observing the exclusive character of the entire system at issue in that case, where [t]own leaders made plain that they intended to begin meetings with what can only be described as Christian worship. Id at 283. The practice in Simpson, by contrast, was acceptable because [c]lerics from multiple faiths and traditions delivered the opening prayers and described divinity in wide and embracive terms; including (among others) the God of Abraham, Isaac and Jacob, the God of Abraham, of Moses, Jesus, and Mohammad, and Heavenly Father. Id. at 284. The Simpson decision remarked approvingly that this ecumenism is consonant with our character both as a nation of faith and as a country of free religious exercise and broad religious tolerance. Id. The court refused to fault the Board for its attempt to foster inclusiveness in invocations. Id. Observing that clergy included rabbis, imams, priests, pastors, and ministers, the Simpson court remarked that Chesterfield included a wide cross-section of religious leaders, a practice that was more inclusive than approved by the Marsh Court. Id at 286. Through this system, in fact, Chesterfield made plain that that it was not affiliated with any one specific faith by opening its doors to a very wide pool of clergy. Id. see also Bacus v. Palo Verde Unified Sch. Dist. Bd. of Ed, 2002 WL 31724273 at ** I (9th Cir.) (we need not decide whether the prayers in the name of Jesus would be a permissible solemnization of a legislature-like body, provided that invocations were, as is traditional in Congress, rotated among leaders of different faiths, sects, and denominations.). D. Legislative Prayers Do Not Have to be Non-Sectarian While Marsh and later cases establish limits on legislative prayer, it is far too simplistic to conclude that such prayers may not include any sectarian references, and in particular may not mention Jesus Christ or other Christian terms. What Marsh requires instead is an evaluation of the totality of the circumstances to confirm that the legislature is not exploiting the prayer as an opportunity to advance or proselytize religion. If Christ must presumptively be excluded, the practices of Congress and many states going back hundreds of years would be unconstitutional. The very sweep of such a rule is enough to undermine any pretense of its validity. The Independence House prayer not only accord with Congress prayers and those upheld elsewhere, but they also avoid practices that have been enjoined, most notably in Wynne. For starters, the purpose of the prayer is to invoke divine guidance for the legislature. Unlike the practice invalidated in Wynne, the Independence House prayers do not seek to involve the larger community in a religious exercise. See Wynne v. Town of Great Falls, 376 F.3d 292, 301 n.7 (4th Cir. 2004); see also Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 284; id at 290 (Niemeyer, J., concurring). The letter sent to those scheduled to give the prayer specifically states that [t]he invocation is to be a short prayer asking for guidance and help in the matters that come before the members. Among other things, these facts indicate that the prayer is not an effort to proselytize or advance a particular faith in relation to the larger community. Also unlike in Wynne, neither the Speaker nor anyone else insists on the invocation of Jesus Christ. The Speaker has never even known the content of a prayer before it was given. Also unlike Wynne, the same representative does not give the invocation each day, nor does the House employ a Chaplain to offer prayer each day. Instead, the Speaker, through the elected representatives of both parties, invites a geographic and spiritual variety of volunteer clergy to offer the invocation, with the result that a wide variety of religious faiths are represented throughout the session. Congress similarly invites a wide variety of clergy sponsored by elected representatives. See generally, Kurtz v. Baker, 829 F.2d 1133, 1135 (D.C. Cir. 1986) (describing the selection process of guest clergy). The Simpson court praised a similar system used by a county council, rejecting the notion that legislative bodies offering prayer are limited to the Marsh model whereby the same Chaplain delivers the same court-approved prayer each day. Simpson, 404 F.3d at 287. This would have the consequence of making America and its public events more insular and sectarian rather than less so. Id. Simpson also commented on the need for legislative prayers to include wide-ranging divine appeals, particularly praising ecumenical invocations. Id. Here, similarly, the House sends a letter to the scheduled clergy asking for an ecumenical prayer out of respect for members and others from different faith backgrounds. That many clerics mention Jesus, Christ, or Savior does not undermine the overall ecumenism (or non-denominationalism) of the prayers, or of the entire system of offering prayer. Additionally the simple fact remains that clerics who invoke the name of Jesus will undoubtedly appeal beyond their own adherents to many who, while of different faiths, also share common religious ground. See Simpson, 404 F.3d at 287. Beyond that, not only have Jewish and Muslim clerics offered prayers in the House, but many Christian clerics have offered prayers that have not mentioned Jesus. Of the 34 recorded prayers by Christian clerics or representatives, in 2005, 16 did not mention Jesus. Of the 18 that did mention Jesus, 10 did so only at the end with in Jesus name we pray. As for the other, mentioning Jesus does not necessarily exclude non-Christians. In fact, one pastor who prayed in the name of Jesus did so only after proclaiming great respect for all people who believe differently. Some Christian clerics who led the House in prayer this past term went to even greater lengths to be inclusive. One began his invocation by referring to the Christian tradition, but also mentioned Eastern religions, Buddha, Zen masters, philosopher Wickenstein, [sic: Wittgenstein] the goal of all religious founders, saints, mystics, gurus, and mythology. Thus the actual House prayers and clergy du jour are of a far wider spiritual variety than plaintiffs suggest. The majority adopts the plaintiffs argument argue that no prayers offered in the House may be sectarian. But this term carries a wide variety of highly subjective meanings and prompts disagreement even among the individual plaintiffs. All they really know is that Christian references, i.e., references to Jesus, Christ, and Savior, should be forbidden. Some suggest that the Quaker model of unprogrammed prayer (Le. silence) should be the standard. Kramer may approve of references to Lord and Father depending on the context. Hart, however, is not comfortable with the term Lord and believes that Father is objectionable because it implies the existence of a Son, namely Jesus. Creator appears to be acceptable though Hart voiced concerns over that term when used to suggest divine involvement on behalf of individuals. Reverend Jack Kramer says that to the extent that [a prayer includes] any reference to a deity that is offensive to another, you verge on being sectarian. He claims to be injured by a legislative prayer when there are other ways of . . . offering that prayer that would be more representational of all people of this state. He even objects to the Pastors statement of respect for all people who think differently, before praying in the name of Christ, stating that it is a double message. Ultimately the plaintiffs, when pressed to provide consistent, objective definitions of sectarian, abdicate responsibility for drawing that line, insisting that is the responsibility of the Courts. Plaintiffs struggles with the meaning of sectarian are significant because they confirm what should be obvious anywaythat any attempt to draw an objective line between sectarian and non-sectarian prayer is futile (if only because the very act of drawing the line will offend some faiths). In essence, the plaintiffs all object to vocal legislative prayer of any sort, but, given Marsh, they are willing to settle for a rule against Christian prayer. But it is incongruous to rely upon Supreme Court precedent and say that addressing God is permissible, even though atheists may be offended, while also maintaining that addressing Jesus goes too far because non-Christians may be offended. There has to be a neutral principle of sectarian to apply, and no one is provided here. Nor should the Court rush in where plaintiffs fear to tread. Marsh itself warned against parsing through the language of individual prayers to decide what is permissible and what is not, and one of the key insights of the Simpson case is that too much judicial fine tuning of legislative prayer policies risks unwarranted interference in the internal operations of a coordinate branch. Simpson, 404 F.3d at 286-87. But that is exactly where the majority has lead us. The prayer system implemented by the Speaker, however, avoids any need for such involvement by the Court. Those offering prayers are self-selected and uncensored. Notwithstanding the constitutional permissibility of limiting legislative prayers to Judeo-Christian invocations (see, e.g., Simpson, 404 F.3d at 283; Snyder, 159 F.3d at 1234), there is no suggestion that either the Speaker or any elected representative has ever rejected, based on spiritual viewpoint, any cleric asking to give the House prayer. The Independence House system does not require policing for sectarianism or other religious advancements or affiliations because the Speaker invites clerics of all creeds and thereby avoids any reasonable inference that any single faith represents an official government viewpoint, no matter what deity may be invoked. Indeed, for this reason, even if the Court concludes that Marsh is inapplicable and that either the test from Lemon v. Kurtzman, 403 U.S. 602 (1971), or its cousin the endorsement test (Lynch v. Donnelly, 465 U.S. 668,688(1984) (OConnor, J., concurring)) applies, the Independence House prayers are nonetheless constitutional. The purpose of the invocation, to solemnize the legislative meeting day by invoking divine guidance for the legislature fulfills a secular purpose. See Bogen v. Doty, 598 F.2d 1110, 1113-14 (8th Cir. 1979) (upholding county board prayer under Lemon because purpose of establishing a solemn atmosphere and serious tone was clearly secular). The range of faiths and viewpoints that are represented during any given session of the General Assembly ensures that no reasonable person, with full knowledge of the circumstances, could conclude that these prayers represent official government endorsement or advancement of any particular faith. Indeed, the Bogen court concluded that, notwithstanding that only Christian clergy gave the prayers at issue in that case, the primary effect would be one of solemnization, not advancement of religion. Id. at 1114. There is no reason to reach a different conclusion here. The Speakers unwillingness to restrict the content of any clerics prayer also ensures that no excessive entanglements with religion (such as sorting through proposed prayers and detecting esoteric sectarian references) will occur. See Colo v. Treasurer and Receiver General, 392 N.F.2d 1195, 1200-0 I (Mass. 1979) (no excessive entanglement because [t]he prayers offered are brief, the content unsupervised ... and attendance completely voluntary.) Enjoining the Speaker to implement such restrictions, by contrast, would guarantee entanglement between the state and religious practice. If the Speaker were required to undertake reasonable efforts to execute such an injunction, he would need to establish a formal structure to (I) screen interested clerics; (2) educate them as to the court-imposed standards; (3) police the exact content of the prayers; and (4) debar clerics who give unlawful sectarian prayers. All of this, of course, would be designed to cleanse the House of vaguely understood sectarian prayers that not even plaintiffs can precisely describe. Better still; the current practice validates both clauses of the First Amendment. The Free Exercise and Free Speech Clauses are equally vital here. The House fulfills its official need to solemnize each meeting day and ask for divine guidance by inviting individual citizens to practice a single dimension of their faithprayer--on the Houses behalf It defies reality to suggest that those clerics shed their consciences at the Statehouse door and become mere tools of the House or the Speaker in those moments of prayer. Particularly because they offer invocations only intermittently, these clerics should not be subjected to unwarranted government interference with their rights of conscience and speech just because they are rendering service to the government. The record is clear that, aside from the form letter gently urging ecumenical prayer, the Speaker does not censor the prayers and does not admonish anyone for the content of a prayer. The record is equally clear that some clericsincluding some who have offered prayers in the House in 2005would not be able to offer a prayer without invoking the name of Jesus. Yet plaintiffs would require the Speaker to instruct those clerics not to pray in Jesus name, a rule that would, because of their faith, effectively disqualify them from offering a prayer in the House in the future. As far as the Speaker is aware, this would be the first known religious viewpoint discrimination in connection with the Independence House invocation. That such discrimination would arrive in the cloak of the Establishment Clause would not lessen the unwarranted pain such exclusion inflicts. Indeed, it is not even clear that such a rule would avoid all manifestations of sectarianism in legislative prayer. Not only would there be an infinite variety of sectarian references for the Speaker to police, but the nature of religion is such that prohibiting references to Christ would advance particular religious tenets every bit as much asif not more thanpermitting such references. IV. Conclusion The Establishment Clause plainly does not require state legislatures to be converted, however briefly, into Quaker Meeting Houses. Nor does it require the Speaker to banish invocations of or references to Jesus, Christ, Savior, Allah, Father, Yahweh, Buddha, Krishna, Vishnu or any other religious figure or tenet. The Speaker adheres to the House Rules while permitting free religious expression by a wide variety of Independence clergy. The Establishment Clause demands no judicial interference with this practice. I would affirm the district court. IN THE UNITED STATES SUPREME COURT APPEAL NO. 16-75-63-67-1618-86  DONALD BUDGE, et al Petitioner (Defendants and Appellees Below)Appeal from the United States Court of Appeals, Fourteenth Circuitv.FRED PERRY, et al Respondents (Plaintiffs and Appellants Below) Order Granting Certiorari  The petition of Donald Budge for an order of certiorari to the United States Court of Appeals for the Fourteenth Circuit is hereby GRANTED. Oral argument shall be conducted on October 21, 2006, in Crawfordsville, Indiana. The argument shall be confined to the following issues: Whether the Plaintiffs have standing to maintain the action? And Whether the Independence House of Representatives prayer practice violates the First Amendment? Petitioner shall be entitled to open and close the argument. FOR THE COURT/s/ Suzanne Lenglen Suzanne Lenglen, Clerk, United States Supreme Court  Although he is a taxpayer, Fred Perry has standing fix an additional reason as well. At the current time he has stepped aside as a lobbyist and will not return to the Independence House unless, and until, the practice of sectarian prayer stops. He has therefore undertaken a special burden or has altered his behavior to avoid the offensive object. Books, 235 F.3d at 299. If he were to return at this point he would be forced to come into direct and unwelcome contact with the objected to prayers. This would give him standing as well. Books, 235 F.3d at 300. Therefore, regardless of his status as a taxpayer, Fred Perry has standing to bring this action.  It is true that the clerics are advised that they should give an ecumenical prayer. It is not clear what is meant by ecumenical inasmuch as one definition of the word is promoting or tending toward worldwide Christian unity or cooperation. Websters Seventh New Collegiate Dictionary 263 (1971). Obviously, if the clerics are directed to issue a Christian prayer, this further illustrates how different this case is than Marsh. However, even assuming that the word non-sectarian is substituted for ecumenical it is apparent that the prayers that are being delivered are not non-sectarian and that neither the Speaker not anyone else has done anything to further advise the officiants of any requirement that the prayers be nonsectarian and what that requirement entails.  The majority relegates Mr. Perrys other claimed injury to a footnote, so I do likewise. Perry claims that he will no longer perform his work as a lobbyist as long as the Speaker of the House of Representative[s] allow[s] sectarian prayers to be said in the House. At his deposition, however, when asked whether it was his personal decision not to work as a lobbyist until the lawsuit was over, Perry confirmed that if it were up to him, he would continue to serve as a lobbyist during the pendency of the lawsuit.  Perry also contends that, under Books, he has a special burden to avoid being offended the burden of avoiding the sectarian prayers. The facts suggest otherwise. Perry must exert concerted effort to encounter the prayer. Standing does not lie where the plaintiff must go out of his way just to be offended. See Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, 454 U.S. 464, 487 (1982) (Their claim that the Government has violated the Establishment Clause does not provide a special license to roam the country in search of governmental wrongdoing and to reveal their discoveries in federal court.); see also Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1467-68 (7th Cir. 1988) (no standing where plaintiffs alleged offense toward a Ten Commandments monument they had to go out of their way to see).     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