Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 C 894 -- Marvin E. Aspen, Judge.
Cudahy, Posner and Kanne, Circuit Judges.
Plaintiffs brought a lawsuit challenging the validity and seeking to prevent the implementation of House Resolution 408 ("H.R. 408"), passed in May 1985 by the Illinois House of Representatives. The Resolution authorized the establishment of a "prayer room" in the Illinois State Capitol Building in Springfield, Illinois, a place for "prayer and meditation, primarily for the use of the members of the General Assembly." The district court granted plaintiffs' motion for summary judgment holding, inter alia, that H.R. 408 was unconstitutional under the establishment clause of the first amendment to the United States Constitution. The court granted declaratory and permanent injunctive relief in favor of the plaintiffs. We reverse.
In May 1985, Michael Madigan, speaker of the Illinois House of Representatives, introduced legislation, designated House Resolution 408, which provided for the conversion of a hearing room in the Illinois State Capitol Building ("the Capitol") into a prayer room. Shortly thereafter, H.R. 408 was adopted by the full House. The Resolution directed the Legislative Space Needs Commission to "make available a room with facilities for prayer and meditation, primarily for the use of the members of the General Assembly."
The Resolution tries to put the religious facet of the proposal in perspective by enumerating religious observances and allusions to God in public life. Specifically, the Resolution points to prayers offered by military and legislative chaplains, to language in the Gettysburg Address, in the Preamble to the Illinois Constitution and in a pledge of allegiance taken by Illinois legislators, and to mottoes on United States coins and stamps. In addition, the Resolution describes the prayer room that Congress established in the United States Capitol in 1955. H.R. 408, paras. 1-4, 12. Against this general background, the Resolution describes the origins of the proposal for a prayer room in the state capitol. According to the Resolution, the idea was conceived by some General Assembly members who had been meeting for Bible study and prayer breakfasts as a "quiet and special place, where [the] members of the [General Assembly] may seek God, the comfort of His presence, the light of His guidance, and the strength of His love." Id. at para. 13. The Resolution acknowledges state constitutional prohibitions on the expenditure of state funds for sectarian or other than public purposes, but anticipates avoiding these strictures by making the room nonsectarian and assuring its availability to all the people of the state. Id. at paras. 10-11. To alleviate any remaining fiscal objections, the Resolution contemplates that private donations will be raised to cover the cost of renovating and maintaining the room. Id. at paras. 11, 15.
The Legislative Space Needs Commission has met to plan for the prayer room, and approved the recommendation of a special subcommittee (created by H.R. 408) that the prayer room be established in Room 122A of the Capitol. No specific plans for furnishing or decorating the room have yet been adopted. The Commission has, however, discussed hiring an architect and the possibility of installing pews.
On February 6, 1986, the plaintiffs filed an action in district court challenging the endorsement, establishment and maintenance of a prayer room in the Capitol and seeking declaratory and injunctive relief against the defendants under the establishment clause of the first amendment of the United States Constitution and under article I, section 3 of the Illinois Constitution.
The parties filed cross-motions for summary judgment and the district court granted the plaintiffs' motion. The district court held H.R. 408 unconstitutional under the first and fourteenth amendments of the United States Constitution and article I, section 3 of the Illinois Constitution. The court entered a declaratory judgment invalidating H.R. 408 and a permanent injunction prohibiting any actions to establish a prayer room in the Capitol. In reaching this outcome the district court purported to apply the three-part test articulated in Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971).*fn1 This appeal followed.
The district court held and neither of the parties has disputed that Van Zandt has standing to sue since he is an Illinois taxpayer and since the proposed prayer room would arguably place economic burdens of various sorts on the State of Illinois and its taxpayers. Van Zandt v. Thompson, 649 F. Supp. 583, 587 (N.D. Ill. 1986) (citing Marsh v. Chambers, 463 U.S. 783, 786 n.4, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 (1983)). Similarly, the district court held that the "Freedom from Religion Foundation, Inc.," a Wisconsin not-for-profit corporation, has associational standing as a representative of its members who are Illinois taxpayers. Id. at 588 n.4. These determinations appear to be correct and have not been challenged by any of the parties. We therefore accept them.
Before discussing the merits, we should clarify the scope of our inquiry. This case presents us with a legislative resolution that combines both secular and religious justifications for converting a hearing room in the state capitol to a room for prayer and meditation. The prayer room, at present, is no more than a general plan. There is no indication of how the converted room will be furnished apart from a proposal to use pews that the state obtained prior to the enactment of H.R. 408 when it purchased a church near the Capitol. Nor is there any indication of the types of activities that will be conducted in this room. The Resolution and the preliminary steps taken by the Space Needs Commission are consistent with a broad range of eventualities, ranging from individuals meditating silently in a room entirely devoid of religious ornamentation to clergy conducting denominational services in a chapel replete with sectarian trappings.
Our review at this stage is limited to the question of whether H.R. 408, considered together with the preliminary administrative actions taken to date, violates the establishment clause. In a system that appoints judges for life and empowers them to review the legality of legislation, a cardinal principle of judicial self-restraint dictates that they not "'anticipate a question of constitutional law in advance of the necessity of deciding it.'" Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346, 80 L. Ed. 688, 56 S. Ct. 466 (1936) (Brandeis, J., concurring) (quoting Liverpool, New York & Philadelphia S.S. Co. v. Emigration Comm'rs, 113 U.S. 33, 39, 28 L. Ed. 899, 5 S. Ct. 352 (1885)). Even in free speech cases, where concerns about the chilling of protected expression have given rise to the doctrine of "substantial overbreadth," see, e.g., Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 634, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980), plaintiffs must generally show that a statute is unconstitutional as applied, not merely that it may be interpreted to authorize unconstitutional actions. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-04, 86 L. Ed. 2d 394, 105 S. Ct. 2794 (1985); see also id. at 508 (O'Connor, J., concurring) ("this Court has long recognized that concerns for comity and federalism may require federal courts to abstain from deciding federal constitutional issues that are entwined with the interpretation of state law"). In keeping with this principle, we consider only how H.R. 408 itself squares with the establishment clause. We decline to speculate about constitutional issues that may be raised by the ultimate contents and uses of the prayer room.
The central issue in this litigation has been whether the matter before us is governed by the three-pronged test of Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971) or by the principles of Marsh v. Chambers, 463 U.S. 783, 77 L. Ed. 2d 1019, 103 S. Ct. 3330 (1983). We believe that Marsh properly governs this case. But even if we have lost our way in the tangle of establishment clause doctrine and Lemon in fact controls, we find that H.R. 408, on its face, poses no violation.
The issue in Marsh was whether the Nebraska legislature's practice of opening each session with a prayer read by a state-employed chaplain violated the establishment clause. Since 1965, the legislature had employed a Presbyterian minister as its chaplain. All the prayers read by the chaplain invoked the Deity; for a time (prior to a complaint by a Jewish legislator) many were "explicitly Christian." 463 U.S. at 793 n.14.
We have discovered very few cases other than Marsh that consider an establishment clause challenge to the internal religious practices of state legislative bodies or the Congress. Those cases have uniformly upheld the practice of opening legislative sessions and other similar gatherings with prayers. Bogen v. Doty, 598 F.2d 1110 (8th Cir. 1979) (opening of county board meetings with prayer by unpaid clergy); Colo v. Treasurer and Receiver Gen., 378 Mass. 550, 392 N.E.2d 1195 (1979) (opening of legislative sessions with prayer by paid clergy); Lincoln v. Page, 109 N.H. 30, 241 A.2d 799 (1968) (opening of town meeting with prayer by unpaid clergy).
The Supreme Court's historical analysis in Marsh found that practices similar to those of the Nebraska legislature had been followed by the United States Congress at the time the first amendment was drafted. 463 U.S. at 788. The Court also found that legislative chaplains had been employed continuously in most of the states. Id. at 788-89 & n.11. From the prevalence of these practices, the Court concluded that the framers of the first amendment did not view paid legislative chaplains and opening prayers as an "establishment of religion."
In addition to analyzing the historical roots of legislative chaplaincy, the Court examined whether the particular features of the Nebraska legislative chaplaincy violated the establishment clause, focusing on the motives of the legislature in employing a Presbyterian minister and on the content of the opening prayers. Id. at 793-95. With respect to the choice of a clergyman of one denomination, the Court considered whether such a practice "advances the beliefs of a particular church" and concluded that it did not. Id. at 793. Similarly, the content of the prayers was held not to pose any real question absent some indication that "the prayer opportunity has been exploited to proselytize or advance any one, or to ...