Dishonest Fear Mongering on Seventh Circuit Nominee David Hamilton

Still convinced that they matter, the far right, from RedState to NRO, are rallying to oppose District Judge David Hamilton, whose appointment to the Seventh Circuit is now pending before the Senate. One part of their argument is that Judge Hamilton previously forbade sectarian prayer in the Indiana legislature, but offered to construe prayers to “Allah” as nonsectarian, and therefore permissible. Down with Jesus, up with Allah! While terrifying if true — conservatives and liberals can agree on that, if for different reasons — it’s completely false. Here’s why.

The case is Hinrichs v. Bosma, and the offending post-judgment motion is contained at 2005 U.S. Dist. LEXIS 38330. The relevant text:

The Speaker has also asked whether, for example, a Muslim imam may offer a prayer addressed to “Allah.” The Arabic word “Allah” is used for “God” in Arabic translations of Jewish and Christian scriptures. If those offering prayers in the Indiana House of Representatives choose to use the Arabic Allah, 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 contemplated in Marsh v. Chambers, the court sees little risk that the choice of language would advance a particular religion or disparage others. 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. (Emphasis/coloring added.)

The discussion emerges from Judge Hamilton’s attempt to define what constitutes a “sectarian” prayer in the Christian tradition, and is therefore forbidden. In context, this paragraph is an explanation that the choice of the name of God is irrelevant to the question of whether a prayer is “sectarian” — and a reminder, bolded in my copy, that if a prayer to “Allah” were to “ever seem to be advancing Islam,” it would be a “problem” worthy of his attention.

Admittedly Hamilton’s phrasing was unfortunate — it violates “Rove’s Law,” in the sense that the red-lettered portions of the paragraph can be excerpted from the whole to make it seem like Hamilton is advocating for something that he is not. But the bolded section, which describes Islamic sectarian prayer as a “problem” similar to Christian sectarian prayer, controls, and cannot be divorced from an honest reading of the opinion. If conservatives’ concern is that sectarian prayer ought to be permitted in legislatures, that’s a valid disagreement with Judge Hamilton; the contention that he supports Islamic but not Christian prayer, however, is not.


  1. The judge’s argumentation seems somewhat problematic. I would usually assume that if an imam used “Allah” rather than “God” in a prayer that is otherwise in English, he is at least on a certain level making a reference to the God of Islam.

    On the other hand, that doesn’t really seem significantly more sectarian than an English-speaking Christian priest who refers to “God” – presumably, he or she will be thinking of the Christian God.

    (Also, not that I speak Hebrew, but I understand that “Elohim” is actually quite specific as a name of Jahwe in modern Judaism. The word “El” would probably better as a general reference to the Divine.)

  2. Yeah, I would question if you would ever see “Allah” used outside of a sectarian Islamic prayer. Hamilton seems unaware of that, but willing to confront the issue if it arises. So he may not be the most on-the-ball, but at least he’s not “discriminating against Christianity omg!”

  3. I want to know more about this case and the issue in general. I understand the idea is that the prayer cannot favor Catholicism over Protestantism, or Christianity over Islam, but the generic prayers that are permitted still favor Abrahamic religions over all others, or at least monotheism over polytheism, and ultimately, religion over atheism. What is the justification for drawing the line at “sectarian” in that way?

  4. This is something I don’t know as much about as I should — but yeah, general prayers (to “God”) are, I believe, okay. After all, Supreme Court arguments begin with “God save this honorable Court,” and I doubt they’ll see themselves sued anytime soon. I’ll look into it.

    Generally, though, be prepared for a real bizarre trip. Establishment Clause law is just all over the place.

  5. Kris, who says that a non-Abrahamic prayer would not be permitted?

    1. I’m not saying it’s not permitted. I’m saying that what is permitted – so-called non-setarian prayer referring generically to “God” – is not necessarily inclusive of non-Abrahamic religion.

    2. I don’t really see the problem. Most denominations of Hinduism could use the word “God” as well if they want, and there should be no problem in framing a Buddhist prayer (perhaps not the best term, but whatever) in non-sectarian ways, either.

    3. My point is that there really is no such thing as a prayer that is generic enough to fit all faiths, and by its very nature can never be inclusive of those with no religious conviction.

      The only equitable way to deal with this is to disallow any formal, organized prayer under such circumstances, as it is in public schools.

  6. There is a redundancy in the title of this post. Is there such a thing as honest fear mongering?

  7. I agree with Kris. There really is no such thing as a non-sectarian prayer. Dahlia Lithwick has a nice article on this controversy in Slate:

    “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.”

    Full article:

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