H.R. 4776 protects free speech in state legislatures

US District Judge David Hamilton ruled on November 30, 2005 that anyone offering public prayers in the Indiana state legislature must not mention the "name or title" of Jesus. The ruling was in response to a suit filed by the Indiana Civil Liberties Union (ICLU). Attorney Kenneth Falk, a spokesman for the ICLU, enthused that the ruling would ensure that any legislative prayers would be "inclusive of everyone in Indiana rather than exclusive."

Falk's comment is, of course, absurd. Most residents of Indiana would describe themselves as Christians. Any prayer that is not made in the name of Jesus is not a prayer to the Christian God. To forbid prayers in Jesus' name is thus less inclusive, since it excludes most Indiana residents.

My opinion about legislative prayers is the same that it was in 2003, when I suggested in a column that caucuses of the various religions represented among the members hold separate prayers. I argued at the time that general prayers implied an impossible degree of religious unity, and that caucus prayers would "...recognize the importance of God's guidance for legislative deliberations" while respecting the religious differences among the members.

I still believe that this is the best approach, but the federal court ruling adds a further dimension to the issue. It is one thing for the legislature voluntarily to regulate its own practice of public prayer. It is another thing entirely for the federal judiciary to intrude on this prerogative of the legislature. Judge Hamilton is asserting the power to regulate the content of speech that takes place in legislative sessions. This is clearly an abuse of power that must not be allowed to stand.

Indiana House Speaker Brian Bosma has suggested that the House might appeal the decision. An appeal would concede that the legislative prayers and other legislative speech may legitimately be regulated by the federal courts. It may not, and I disagree with making such a concession.

A better approach is the legislation introduced recently by Representative Mike Sodrel and 33 other US Representatives: H.R. 4776. This bill takes advantage of the power of Congress under Article III, Section 2 of the Constitution to limit the jurisdiction of the federal courts. It would prohibit the courts from performing any review of the content of speech in legislative sessions. Each state and any speakers in legislative sessions would also be protected from any lawsuits, fines or other punishments arising from the content of such speech.

I have objected in the past to the use of this constitutional power to prohibit judicial review of a particular piece of legislation. The problem that I saw with that use of the power is that any law could be immune to judicial review if such a provision were attached. In this case, however, Congress would be protecting the right of free speech from infringement by the courts. It fits perfectly with the letter and spirit of the Constitution.

If H.R. 4776 were to pass, Hamilton's ruling would still stand. In fact, the bill would prevent any appeal of his ruling, since higher courts would be prohibited from reviewing the legislative speech. How, then, would the new law help the Indiana legislature? If the state House were simply to ignore Hamilton's ruling, the law would prevent the judge making any further orders to enforce it. Thus the practical effect would be to overrule Hamilton.

Anyone who values free speech should urge other US House members to cosponsor H.R. 4776, and senators to introduce a similar bill. The 34 representatives who introduced H.R. 4776 deserve our notice of their attempt to control the runaway federal judiciary.