The Supreme Court has allowed legislative sessions to open with prayer, but emphasized that the supported prayers were non-sectarian (see Marsh), in which "all reference to a specific religion has been excised". Generic prayers to a higher power are the church-state compromise - and the Court's nod to "history and tradition". But in Indiana recently, Speaker Brian Bosma actively oversaw a process that offered - in the words of the US District Judge who banned it - "systematically sectarian" prayers to open the legislative day in the House. The Washington Post describes the scene that finally inspired the lawsuit:

It was Clarence Brown's energetic rendition of "Just a Little Talk With Jesus" that prompted several legislators to decide enough was enough. The Indiana Civil Liberties Union soon filed suit in the name of four people -- a Quaker, a Methodist and two Catholics -- to stop what critics considered an increasingly sectarian prayer practice.

Brown, 51, is an evangelical Christian layman who works in an auto parts factory 70 miles south of Indianapolis. Invited to give a prayer to open the April 5 House session, Brown said he was thinking about the separation of church and state as he drove to the state Capitol.

He said he talked with God during the ride and decided to speak up for the man he considers his savior. "I wanted to share the word. That's what I'm supposed to do," Brown said. "I have to do what Jesus Christ says for me to do as a witness."

Brown's prayer included thanks to God "for our lord and savior Jesus Christ, who died that we might have the right to come together in love." When the prayer was finished, Bosma announced that Brown would "bless us with a song."

As Brown led the rollicking tune, some members and staffers clapped and sang along.

Bosma was unmoved by the controversy, and the concern it raised, particularly among non-Christian communities. A My Left Wing post from last year offers a Rabbi's account of a meeting with the Speaker that left him frightened:

Last Tuesday, the Indianapolis JCRC's Jewish Lobby Day was held.  Around 40 Jews from around the State of Indiana came to Indianapolis to lobby our state senators and representatives on a number of issues.
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Speaker Bosma wondered why we hadn't discussed the controversy surrounding the issue of prayer in House chambers.  He told us his version of what happened and what he believes, and a passionate exchange took place.  The end of this exchange left us, the Jewish delegation, in shock.  Speaker Bosma, defending the prayer issue, asked, "How many Jews are there in Indiana?  About 2%?  There are at least 80% Christians in Indiana."

The implication of this statement was that our minority community doesn't and shouldn't have any say or any voice.  It is about the majority and what the majority wants.  The jaws of the delegation dropped to the floor.  We were speechless.  Everything we believed about this country had just been trampled.  Gone was the belief of the constitutional protection of minorities.  Gone was not feeling marginalized.  Gone was the belief we were not strangers in this country.  I am sure that Speaker Bosma is a fine man, but in that moment, for the first time in my life as a citizen of this country, I was scared.  It is what I now call the 2% solution (and Jews are much less than 2% of this state) that if you are only 2% don't even bother to speak up as the "Tyranny of the majority" will prevail.

Bosma's defiant stance was such that Judge Hamilton, in denying his request to clarify the ban on his prayer practice, issued a warning:

"If the speaker or those offering prayers seek to evade the injunction through indirect but well understood expressions of specifically Christian beliefs, the audience, the public, and the court will be able to see what is happening. In that unlikely event, the court will be able to take appropriate measures to enforce" the injunction.

This week, that victory over government's endorsement of Christianity has been undone by a 7th Circuit panel that, citing the Hein decision, denied the taxpayer plaintiffs the standing to sue. Judge Wood's blistering dissent takes exception:

This reading of Freedom From Religion would effectively adopt Justice Scalia's concurring opinion for himself and Justice Thomas advocating the overruling of Flast. . . It would become impossible to bring a taxpayer suit for anything short of an unimaginably stupid or insensitive legislative action--perhaps a law announcing that Indiana is a Christian state--which in any event would be unlikely to inflict specific enough harm on any one person to allow him or her to sue for more particular injuries.
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Under the majority's approach, even if the Speaker decides to start working his way through the Anglican Book of Common Prayer day by day, notwithstanding the presence of Jewish, Muslim, Hindu, Buddhist, and other legislators, staff, and constituents, nothing can be done to enforce the command of the Establishment Clause. As long as a majority of the House is Christian, it is also reasonable to predict that the House itself will never take action to curb such a practice.

Her point is important, because Alito claimed that Congress would clean up any mess left behind. But a primary reason to bother having an impartial judiciary is to ensure that the will of the majority does not trample the rights of the minority. Her prediction could be pointed at Alito (or Kennedy whose concurrence simply encouraged state governments to "obey the Constitution" without judicial oversight): there is no reason to believe that elected officials will take action to avoid unconstitutional activity, if it is perceived to be approved by the majority of voters. That is why the rules of standing in Establishment Clause cases had been more generous: how else will we stop gross violations? As Judge Wood adds:

The Establishment Clause uniquely involves this sort of psychic, aesthetic, or intangible injury. The injury involved is never physical and only rarely (with the prominent exception of taxpayer cases, it so happens) even monetary.
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Indeed, viewed against the backdrop of other injuries in Establishment Clause cases, the plaintiffs here have shown more concrete damage than most: they have enumerated, with some degree of accuracy, the value of the "three pence" they pay to support the practices of which they complain.  This harm is more concrete than injuries arising from a Ten Commandments display, a holiday creche, or a graduation prayer, all of which are staples of Establishment Clause jurisprudence.

To be clear, nothing about this ruling validates the practice of beginning legislative sessions with overtly sectarian prayer. But it does make it much harder to challenge it, and we have Justice Alito and the Hein decision to thank for that. What he was trying to present as a narrow decision regarding the executive branch's spending has blossomed into a restriction on bringing to account an action of the state legislature. As Melissa Rogers analyzes:

With the Hein decision, the Supreme Court insulated a good deal of executive branch action from taxpayer challenge, and thus, for practical purposes, any challenge at all.  With its decision in Hinrichs v. Bosma, the Seventh Circuit appears to insulate a good deal of action by the legislative branch from taxpayer challenge, and thus, for practical purposes, any challenge at all.
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If religion is to have integrity, it must have independence from the government.  When we allow taxpayers and others to challenge the government to keep faith with the Establishment Clause, we further these aims.  When we will not even allow such challenges through the court house door, we jeopardize these values and the kind of religiously heterogeneous yet largely harmonious society that we have been.

[Compiled in part from posts at the blog of the Baptist Joint Committee for Religious Liberty]