David F. Hamilton has now been officially nominated by President Obama's as his first Appeals Court nominee. Guess what? It could trigger a serious ideological fight. Get ready. Don't be surprised to see conservative judicial groups raise a stink on the separation of Church and State issue not to mention a few other issues too.
The New York Times calls him a "moderate" but some of these conservative judicial groups will paint him as an extreme liberal. For starters,The Brody File has done some research and found that Judge Hamilton was at the center of a controversy in 2005 when he ruled that the Indiana House of Representatives was not allowed to include prayers that included the name of Jesus. He cited the Separation of Church and State.
Read his ruling here. His conclusion in the case is below:
When the Founders of this Nation set the boundaries on the power of government, the first words they wrote in the Bill of Rights were "Congress shall make no law respecting an establishment of religion . . . ." The Founders recognized that we are a people of many strong and vigorous faiths. They acted to protect the liberty to practice those faiths. The Founders also knew centuries of history in which religious conflicts had caused war and oppression. They recognized that even the best intentions of people of faith can lead to division, exclusion, and worse. And they recognized that a majority who sees its faith as true and benign can be tempted in a democratic republic to try to use the power and prestige of government to advance that faith in ways that would actually divide and exclude.
All of us who have inherited the liberties of the religion clauses of the First Amendment continue to elaborate on their meaning and application one case at a time. In this case, for the reasons set forth above, plaintiffs are entitled to a permanent injunction against the Speaker in his official capacity barring him from permitting sectarian prayer as part of the official proceedings of the Indiana House of Representatives. If the Speaker chooses to continue any form of legislative prayer, he shall advise persons offering such a prayer (a) that it must be nonsectarian and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief, and (b) that they should refrain from using Christ's name or title or any other denominational appeal.
By the way, the 7th Circuit Court of Appeals eventually overturned that decision but not because of what Hamilton wrote. The plantiffs did not have proper standing.
We're not going to know whether this will turn into a full fledged problem for the Obama administration but Judge Hamilton's decision in this case triggers a nerve with many conservative and moderate leaning Evangelicals and Catholics. This isn't a potential fight he really wants to get bogged down in, especially one that invokes the culture wars. We'll see how it plays out and we'll need to watch people like Senator John Cornyn and Minority Leader Mitch McConnell to see how much they're ready to play hardball. I can tell you that conservative judicial activists are gearing up for a fight.
Early on in the 2008 campaign, candidate Obama answered Brody File questions about the separation of Church and state issue. Read his comments to me below.
For my friends on the right, I think it would be helpful to remember the critical role that the separation of church and state has played in preserving not only our democracy but also our religious practice. Folks tend to forget that during our founding, it wasn't the atheists or the civil libertarians who were the most effective champions of the First Amendment. It was the persecuted minorities, it was Baptists like John Leland who didn't want the established churches to impose their views on folks who were getting happy out in the fields and teaching the scripture to slaves.
It was the forbearers of Evangelicals who were the most adamant about not mingling government with religious, because they didn't want state-sponsored religion hindering their ability to practice their faith as they understood it. Given this fact, I think that the right might worry a bit more about the dangers of sectarianism.
Whatever we once were, we're no longer just a Christian nation; we are also a Jewish nation, a Muslim nation, a Buddhist nation, a Hindu nation, and a nation of non-believers. We should acknowledge this and realize that when we're formulating policies from the state house to the Senate floor to the White House, we've got to work to translate our reasoning into values that are accessible to every one of our citizens, not just members of our own faith community.
Comments?