In a way, Christians should feel flattered. Of all the names in the world, this one is so dangerous that the American legal system has begun putting it in the same category as shouting “Fire!” in a crowded theater. Whatever its impact on public order, however, the Gospel demands to be proclaimed, which puts Christians on a collision course with “Jesus scene clean-up crews.” While Christians use this name to refer to a real person, secularists treat it, ironically, as if it has immanent magical powers. Just the sound of it can resonate so deeply within the atheist’s brain (re: soul) that physical distress results. One might think that those who hate this name the most would simply dismiss it as pure fantasy, rather than trying to quarantine it as a contagious contaminant. Like a tune that gets stuck in one’s mental circuitry (think “The Lion Sings Tonight”), the only way they can get rid of it, evidently, is to litigate.
The most recent example of this phenomenon was a report in the New York Times on March 1, 2009 that the Military Religious Freedom Foundation (MRFF), which is militant about limiting religious freedom in the military, had objected to a video produced for military personnel dealing with depression. In it, Terry Bradshaw mentions that his faith helped him through some dark times. The MRFF was even more disturbed by homecoming ceremonies that “forced” soldiers to hear prayers “in Jesus’ name.” One plaintiff of the suit the MRFF has filed against the Pentagon called these “humiliating and dehumanizing.”
The fate of this case is anyone’s guess, but a recent decision in a similar case should be cause for grave concern. In November 2005, U.S. District Judge David F. Hamilton ruled in Hinrichs v. Bosma that the Indiana House had violated the constitution by opening its session with prayers mainly representing the Christian tradition. The conclusion of his 60-page decision was shocking: “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.” The name of Jesus was effectively declared unconstitutional.
Whether the substance of this ruling would have withstood an appeal is moot, because a subsequent decision by Justice Alito on taxpayer status in a separate case (Hein v. Freedom From Religion Foundation, 2007) led the Seventh Circuit to overrule Hinrichs v. Bosma. This was wise, given that three of the plaintiffs were not present at the time of the prayers (and rarely if ever visited the House) and thus could not demonstrate any real harm.
The question of standing, however, is a technical issue that prevented Judge Hamilton’s decision from being scrutinized for its First Amendment implications. Ironically, the fourth plaintiff, and the only one even indirectly involved in the House prayers, was a lobbyist for an ultra-liberal Quaker public policy group that is explicit about the religious basis of its partisan legislative goals:
The Indiana Friends Committee on Legislation exists as an instrument in the search for God's will for Quakers who are wrestling with the social issues of our day. IFCL attempts to translate the social concerns of Friends into legislative action by advocating Quaker beliefs to Indiana legislators. IFCL seeks to express the spirit of Christ and to relate our Christian Faith and Quaker Testimonies to the shaping of responsible decisions by our state Government. Our purpose is to develop those conditions which allow for the working of the Holy Spirit. [emphasis added]
I can spell out the irony if it is not obvious: an extremely sectarian group that wants to advance its own agenda, which includes eliminating more traditional forms of Christianity from the public sphere (Quakers are very interested in promoting a peace-church public outlook on religion that accords with their emphasis on the moral, but not divine, status of Jesus Christ) got its way in eliminating so-called sectarian prayers from the Indiana General Assembly. Now, this might be beside the point for a judicial opinion, but even the hint of having a court decision bow to vested, let alone sectarian, interest should surely be avoided, especially for a judge who is determined to expel sectarianism from the public square. Otherwise, Judge Hamilton can be accused of playing religious favorites.
It is another irony that Judge Hamilton repeatedly relies on Marsh v. Chambers, which held that the Nebraska legislature’s hiring of a chaplain did not violate the Establishment Clause, to deny Christian prayer in the Indiana Assembly by non-paid visiting clergy and others. The key statement in the Marsh decision that Judge Hamilton quotes is the following: “Chaplain Palmer characterizes his prayers as 'nonsectarian' 'Judeo Christian' and with 'elements of the American civil religion.'” Although some of Chaplain Palmer’s earlier prayers were often explicitly Christian, he removed all references to Christ after a 1980 complaint from a Jewish legislator. The Supreme Court ruled in Marsh that these Nebraska prayers did not proselytize or advance religion. So how does Judge Hamilton use this quotation to justify his decision? The short answer is that he misreads both sentences.
First, Judge Hamilton argues that nonsectarian is to be identified with not using the name of Jesus Christ. Nowhere in Marsh does the Supreme Court make or imply that point. Indeed, on a plain reading of Marsh, nonsectarian is identified with staying in the “Judeo Christian” tradition and using “elements of the American civil religion.” Although the word sectarian has a specific theological origin and its use today is up for grabs, this is not a bad definition of nonsectarian. A nonsectarian prayer is not a prayer that solely expresses civil religion, nor is it a prayer that must step outside of the Judeo Christian tradition (another term that begs for definition). It is a prayer leavened with civil religion.
Second, Judge Hamilton argues that, had the Nebraska chaplain used the name of Jesus Christ, his prayers would have been ruled unconstitutional. That is a highly speculative and arguably false inference to be drawn from the second sentence of the quote, which was informational and in no way ties the Nebraska chaplain’s voluntary modification of his prayer to the conclusion of the Court. The lawyers for the Speaker of the House made this point, more or less, and Judge Hamilton’s only response was that he could not treat the opinions of the majority of the Supreme Court as “offhand remarks.” That is certainly true, but even the most serious of remarks must be carefully analyzed and put in their proper context, which Judge Hamilton does not do in this case. An observation about a fact in the Marsh case that was not even introduced as part of the original case should not be raised to the level of a constitutional principle.
A note on Judeo-Christian tradition is in order, because a Fourth Circuit opinion (Great Falls) argued that using the name of Jesus Christ is not part of that tradition. That opinion is just factually false. Jewish scholars today are the first to point out that the idea of a Judeo-Christian tradition was a Christian invention that weighed heavily in the favor of Christianity and assumed the divinity of Jesus. The Judeo-Christian tradition is a phrase that refers to the way Christianity in the West assumed and adopted Judaism as part of its cultural and religious heritage. Absolutely nothing in that tradition dictates a false humility about claims to Christ’s divinity. Civil religion too is a Christian tradition that has a complex relationship to the divinity of Christ, but I will have more to say on that in a minute.
This brings us to the word sectarian. The only definition Judge Hamilton offers is drawn from Marsh: “Sectarian is defined as relating to or characteristic of a sect. A sect is defined as an organized ecclesial body, or a religious denomination.” That definition, which no scholar of religion would give, basically defines a sectarian prayer as one that originates in a religious group. By that definition, all prayers whatsoever are sectarian. There is no prayer known to humanity that does not originate in a religious group or body of believers. Certainly, by this definition, it is not the naming of Jesus Christ that makes for a sectarian prayer, since many religious groups use his name and many do not. Judge Hamilton is aware of this argument and attributes a version of it to Justice Brennan in Marsh. Judge Hamilton thinks that if this argument were to be granted, it would lead to one of two extreme conclusions: Either all prayer of any kind should be permitted, or no prayer of any kind should be permitted. This is a false dilemma, since the regulation of prayer is still warranted, but not on the grounds of anything having to do with the concept of sectarianism. Judge Hamilton’s reasoning is thus contentious and faulty.
Evidence of Judge Hamilton’s bias in promoting what can only be called a very sectarian understanding of sectarianism is found in his comments about a Muslim prayer given in the Indiana House. Judge Hamilton praises the Muslim prayer for being inclusive, but this is a case of ignorance about Islam, since Muslims can appear to be praying to God in general when they are actually using very specific names for God that have been revealed, they believe, in the Qu’ran. Muslims divide their prayers into the obligatory and the optional, but all their prayers are dictated by their holy scriptures and they all draw from the official ninety-nine names of God. Indeed, Allah is not a generic name for God but a very specific name for the God Muslims worship, and that deity has very different characteristics and a very different nature from the God of Christianity and Judaism. What is ironic is that, in his eagerness to avoid Christian sectarianism, Judge Hamilton has embraced the Muslim form of prayer as exemplary, even though it is every bit if not more sectarian than any of the Christian prayers he rejects.
Perhaps the main problem with Judge Hamilton’s ruling is that he conflates a distinction that is utterly fundamentalthe distinction between ecumenical and non-sectarian. Judge Hamilton orders the prayers to be “inclusive and non-sectarian,” as if these two things are one and the same, but they are not. Prayers that do not use the name of Jesus Christ can be very exclusive, and prayers that use the name of Jesus Christ in thoughtful ways can be very inclusive. Numerous examples of this could be provided, though it should be obvious to a moment’s reflection on the matter. Rather than defining constitutionally appropriate prayers by what they are not (they should not be sectarian), it would be better for everyone were the courts to define them by what they should be (ecumenical). Public prayers should be ecumenical, which is a worthy goal built into the Christian tradition. The judiciary thus should follow the lead of religious leaders, who have been debating the nature of ecumenism for decades, rather than try to create a new category of prayer altogether.
The emphasis on ecumenical prayer would avoid the words that, coming from a federal judge, are very chilling. I am referring to Judge Hamilton’s decision, unique in the judiciary as far as I can tell, that the name of Jesus Christ must not be used in public government sponsored prayer. That this ruling violates the longstanding first amendment explication that the federal government should not become unduly entangled in religious arguments should be obvious from this admission by Judge Hamilton: “Close questions may arise if someone wishes to test the precise boundaries [of sectarian prayer and the use of the name Jesus Christ]. If that happens, the court will address them.” No mechanism is established for this process, which would be a judicial nightmare in any event. Can you imagine a deputy of the court trying to determine whether various synonyms of Jesus (Lord of the Universe, the Sun of God, the Only Righteous One, the Alpha and Omega, the Lamb of the World, our guiding star, the sorrowful passion, etc) violate Judge Hamilton’s strict ruling? Let us pray in the Name of Names that this does not come to pass.
Stephen H. Webb is a professor of religion and philosophy at Wabash College. His recent books include American Providence and Taking Religion to School.