Here we go again

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David Brody, tipster of the religious right, sent out an alert yesterday that thunderclouds are gathering over President Obama’s first big judicial nomination–federal district judge David F. Hamilton of Indiana to the 7th Circuit Court of Appeals. The source of the problem is a 2005 ruling (Hinricks v. Bosma) in which Hamilton turned thumbs down on the pervasively sectarian (i.e. Christian) prayers with which the Indiana House of Representatives had taken to opening its sessions. As in:

To summarize, the evidence shows that the official prayers offered to open sessions of the Indiana House of Representatives repeatedly and consistently advance the beliefs that define the Christian religion: the resurrection and divinity of Jesus of Nazareth. The Establishment Clause “means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). ‘The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.'” County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 605 (1989), quoting Larson v. Valente, 456 U.S. 228, 244 (1982). The sectarian content of the substantial majority of official prayers in the Indiana House therefore takes the prayers outside the safe harbor the Supreme Court recognized for inclusive, non-sectarian legislative prayers in Marsh v. Chambers, 463 U.S. 783 (1983). Plaintiffs have standing as Indiana taxpayers to bring their claims, and they are entitled to declaratory and injunctive relief. This relief will not prohibit the House from opening its session with prayers if it chooses to do so, but will require that any official prayers be inclusive and non-sectarian, and not advance one particular religion.

Naturally, this is being taken as evidence that Hamilton, the son and
grandson of Methodist ministers, is anti-Christian. (Dan Nejfeld’s got
a good account over at Bold Faith Type.)

In the event, a panel of the 7th Circuit overturned Judge Hamilton’s decision, not on its merits but under the U.S. Supreme Court’s 2007 Hein decision, which held that taxpayers have no standing to challenge government action under the Establishment Clause unless the action involves the outlay of government funds. (Follow the legal trail here.) Hein would, as I understand it, prevent (for example) evangelical Christians from challenging the Dharma County (CA) Commission’s resolution acknowledging the spiritual lordship of His Holiness the Dalai Lama because the resolution involved no expenditure of county funds. (Uh, no, there is no Dharma County in California.) This seems perverse.

Judge Hamilton enjoys the backing of both Indiana senators, and my guess is that, barring some other legal casus belli, his nomination will not enounter serious opposition. But the Hinrichs case points to the increasingly problematic issue of prayers at government events. Once upon a time, these were understood to be exercises in inclusion–and over the years that evolved such that the canopy was unfurled to cover anyone who didn’t feel offended by the national motto, In God We Trust. (Of course, some do feel so offended.) But more recently, as evangelicalism has returned to the main arteries of the culture, the prayers have come to be used as an opportunity for witnessing.

Such witnessing sails under cover of the Free Exercise Clause, but Judge Hamilton’s reference to the Supreme Court’s Allegheny Courthouse decision is worth considering here. If a governental body shows a persistent preference for prayer-givers of one kind, then it can reasonably to understood as endorsing that kind of religion. If the prayer-givers are sufficiently varied, then–like holiday displays on the town square–the sectarian character of the prayers might pass constitutional muster. Lacking sufficient variety of clergy in Indianapolis–not enough Tibetan Buddhist monks, perhaps–then the praying should be non-sectarian. Or forget the whole thing.

Update: Hamilton commotion, Day 2.