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. (Click here to follow Dahlia Lithwick).
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.