Jesus Vs. Allah: The Fight Over God’s Secular Title (Dahlia Lithwick/Newsweek; Nov 19)

Pop quiz: which of the following names represents a non-sectarian, universal deity? Allah, Dios, Gott, Dieu, Elohim, Gud, or Jesus?

If you answered “none of the above,” you are right as a matter of fact but not law. If you answered “Allah,” you are right as a matter of law but not fact. And if you answered “Jesus,” you might have been trying to filibuster David Hamilton, Barack Obama’s first judicial nominee.

Hamilton, nominated last March, has seen his confirmation stalled until last week in the U.S. Senate, in part because his opponents claim he’s a judicial activist for an opinion he wrote about God’s proper secular title. In a 2005 case, Hinrichs v. Bosma, Hamilton determined that those who pray in the Indiana House of Representatives “should refrain from using Christ’s name or title or any other denominational appeal,” and that such prayer must hereinafter be “nonsectarian.”

Bosma questioned the practice of opening state legislative sessions with sectarian Christian prayers that included a prayer for worldwide conversion to Christianity. Hamilton found this to be a violation of the First Amendment’s Establishment Clause because it was government speech that favored one religious sect over another. In a post-judgment order, Hamilton also wrote that the “Arabic word ‘Allah’ is used for ‘God’ in Arabic translations of Jewish and Christian scriptures” and that ‘Allah’ was closer to “the Spanish Dios, the German Gott, the French Dieu, the Swedish Gud, the Greek Theos, the Hebrew Elohim, the Italian Dio, or any other language’s terms in addressing the God who is the focus of the non-sectarian prayers” than Jesus Christ. Hamilton, himself a Christian, also added that “if and when the prayer practices in the Indiana House of Representatives ever seem to be advancing Islam, an appropriate party can bring the problem to the attention of this or another court.”

For these words of clarification, Hamilton has been pilloried for months as a judge determined to chase Christians out of the public square in order to make more space for Muslims. In an interview last spring with Christianity Today, former U.S. House speaker Newt Gingrich said Hamilton had ruled that “saying the words Jesus Christ in a prayer is a sign of inappropriate behavior, but saying Allah would be OK.” That’s factually true but hopelessly misleading, which was of course the point. But as a result, Hamilton for months awaited an up-or-down vote despite a distinguished record as a U.S. district judge in Indiana for more than 15 years, the highest ABA rating, as well as endorsements from the president of the Indianapolis chapter of the Federalist Society and his home-state senator Richard Lugar.

The real problem here isn’t Hamilton but the fiction, built into the Supreme Court’s religion jurisprudence, that there can be such a thing as a neutral, nonsectarian religious invocation that will make everyone present feel both included and respected. It has led to a crazy quilt of Establishment Clause doctrine that, depending on the judge and the weather, permits public Christmas displays of secular religious symbols (Santas, reindeers, teddy bears in Santa hats) so long as they have been drained of any strong sectarian meaning. This compromise leaves both deeply religious and deeply skeptical Americans outraged in about equal measure. It also leads to bizarre claims about secular religious symbols, such as Justice Antonin Scalia’s insistence at a recent oral argument that it’s “outrageous” to conclude that “the only war dead that that cross honors are the Christian war dead.” In his view, a Christian cross on government land honors Christians and non-Christians alike. It’s a secular symbol, in his view, because it doesn’t offend him.

The Supreme Court has sliced and diced religious symbols and prayers into the impossible-to-apply paradoxes of secular-religious and heartfelt-thus-unconstitutional. For the millions of Americans, both religious and secular, left standing out in the public square with just a teddy bear in a Santa hat, this is an insult.

Opponents of Judge Hamilton should acknowledge that he was not privileging Allah over Jesus. He was trying to thread the constitutional needle that deems God’s name—whatever the language—secular, but Jesus’ name sectarian. The truth is, Hamilton has gone out of his way to impose a constitutional test that defies both logic and common sense. That makes him more “neutral umpire” than “judicial activist” by my lights. It takes a brave man to impose a test guaranteed to promote the unpopular fiction that America is one nation, under a secular deity to be named later, indivisible.

Americans United Lauds Senate Vote Confirming David Hamilton To Federal Appeals Court (Americans United For Separation Of Church And State; Nov 19)

The U.S. Senate did the right thing today by confirming David Hamilton to the 7th U.S. Circuit Court of Appeals, says Americans United for Separation of Church and State.

The action came despite Religious Right-led demands that the Senate not even hold a vote on Hamilton. The effort failed, and Hamilton was confirmed by a 59-39 vote.

“The Religious Right tried to keep a qualified judge off the appeals court, and two words describe the result: epic fail,” said the Rev. Barry W. Lynn, executive director of Americans United.

Lynn added, “During the presidency of George W. Bush, Religious Right groups complained when judicial nominees did not receive prompt votes in the Senate – yet they tried to do the same thing to Judge Hamilton. The rank hypocrisy of these groups is breathtaking, and I’m glad their tactics didn’t work.”

Hamilton, who was nominated by President Barack Obama in March, came under attack by Religious Right groups for an opinion he issued as a lower court judge striking down sectarian invocations in the Indiana House of Representatives. Other organizations attacked him over an abortion-related ruling he issued.

Several Religious Right groups, including the American Center for Law and Justice, the Family Research Council, the Christian Coalition and Concerned Women for America, mobilized to block a vote on Hamilton. They issued bulletins to their supporters and demanded that the Senate turn back his nomination.

On Nov. 10, two dozen far-right groups and individuals issued a joint statement labeling Hamilton “unqualified” and asserting that his rulings “reflect his bias toward extreme leftist ideology” and saying that he has expressed a “bizarre hostility to religious speech.”

AU countered that these attacks were wild distortions of the facts. Hamilton, AU noted, is clearly qualified for the slot. He is a graduate of Yale Law School and a Fulbright Scholar and served on the U.S. District Court for the Southern District of Indiana for 15 years.

“Religious Right groups had no argument against Hamilton except that they disagreed with some of his rulings,” Lynn said. “These groups seek veto power over appointments to the federal judiciary, and the Senate was right to reject their churlish demands.”

On Nov. 16, Americans United sent letters to every senator, debunking Religious Right attacks on the nominee and urging a vote to confirm him. AU also issued an alert to its members, asking them to contact their senators and urge a vote for confirmation.