In a taxpayer challenge to the Indiana House of Representatives' practice of opening each session with a prayer, the district court's permanent injunction forbidding the practice is reversed and remanded with instructions to dismiss for lack of jurisdiction where, in light of the Supreme Court's holding in Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553 (2007), the plaintiffs lacked standing since they only alleged an expenditure of government funds in violation of the Establishment Clause rather than an explicit legislative approval of the practice.
-- Findlaw Summary of Hinrichs v. Bosma
The 7th Circuit has furthered the efforts of reducing costs by cutting down the ability to challenge alleged constitutional violations by stretching Hein v. Freedom From Religion Foundation, a ruling involving discretionary executive action involving sectarian support of religion to apply to discretionary legislative sectarian support of religion ... even when there is a clear law that involves religious support. The majority in Hinrichs v. Bosma noted that a lawsuit involving a taxpayer challenge to the Indiana House of Representatives' practice of opening each session with a prayer " [did] not challenge any specific congressional action or appropriation." To wit:
The program, as it is presently administered, is not mandated by statute. The origin of the practice is House Rule 10.2, and that rule merely provides that a prayer or invocation be given each meeting day before the House conducts any business
As the dissent, which spent a chunk of its time honoring religious freedom in general (did a law clerk write a student note on the topic or something?), reminds that "They are challenging a legislative act, and they have alleged concrete pocketbook injuries." The amount is pretty trivial (okay, very), but then again Madison warned against that "three pence." And, establishment of religion is about a lot more than money, though yeah, we are talking taxpayer standing here. But, the problem was not the small amount of money. The claim is that unless the legislature directly authorized the practice, setting up an overall plan that in some fashion might be carried out legitimately is not enough, taxpayer standing will not ensue.
This stretches Hein [involving executive action] and is yet another case of encouraging the "wink and nod" approach where there is enough CYA material there, but the spirit of the principle involved (and the actual practice, for those willing to look) is still quite problematic. Reference again the whole "waterboarding is torture" issue* ... the ever continuing attempt to find a figleaf, which was only of limited value to Adam and Eve, and continues to be today. BTW, someone argued elsewhere that my reference to judicial legitimacy of unconstitutional acts to legislative legitimacy amounts to apples and oranges. Legislatures just act to get elected. As I recall, they too swear/affirm to uphold the Constitution. [Art. VI] As Justice Kennedy noted in his Hein concurrence:
It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations.**
We give them a pass at our peril, especially when the federal judiciary -- including in matters important to many more people than legislative prayer -- finds various ways not to decide things with clear constitutional import. Anyway, as I also noted in my reply, in various cases non-judicial action influences judicial interpretations of things like "due process," "reasonable" searches and seizures, and "cruel and unusual" punishments. IOW, the core issues of many of the matters currently being debated regarding executive overreaching and so forth.
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* It was also noted over in the comment string in which I put a form of my argument expressed here that Congress in a recent law made certain behaviors (which primary backers such as McCain held to include waterboarding) criminal but did not provide criminal sanctions. I'm inclined to think that there probably are some laws that can be appealed to address such actions (if a federal law official cannot waterboard an alleged Malvo-like sniper, and be liable for criminal charges if s/he does so, are thinks okay if the person is involved in a terrorist situation?). But, I admit that at some point the nuances of these things get a bit confusing.
All the same, even without criminal penalties, many civil remedies are available when something is clearly against the law, surely when a law against humanity is involved. For instance, those who aid and abet can be impeached, if they are federal officers (members of the military can be targeted in other ways). This includes those officials who allow criminals to continue to work for the federal government. If it is not so now, a law can very well refuse to pay those who torture. And, various civil damage actions can be imagined, actions that can have various negative results that have a deterrent and punitive function as well.
** In that comment string, "cbolt" also notes that sometimes this obligation is ignored and there is nothing we can really do about it ... it is the "way of the world." Sure. But, when the "way of the world" starts to get particularly bad, we start to notice. The changing of the guard in 2006 was in significant part a result of a perfect storm of bad results, incompetence and clear legislative malfeasance. [Policy alone wasn't the deciding factor; process touched upon all of these issues as well.] We have low opinions of politicians, but we still have standards.