04/30/2009 05:12 am ET Updated May 25, 2011

President Obama Straddles the Wall of Separation

President Barack Obama has nominated Federal District Judge David F. Hamilton to the federal 7th Circuit Court of Appeals. Nomination hearings are expected to begin this week. Hamilton seems assured of confirmation, especially since Indiana's Republican Senator, Richard Lugar, announced that he "enthusiastically" supports the nomination.

Because this is President Obama's first judicial nomination, people are watching closely for hints of what the Obama judicial philosophy will be. Based on Judge Hamilton's record, it seems that thoughtful, moderately liberal judges will be the new standard. Judge Hamilton is not in any sense a poster boy for the left. It also appears that Harvard-grad Obama will not be discriminating against Yale Law grads.

One possible exception to Judge Hamilton's middle of the road image is the separation of church and state. (There is also an abortion informed consent decision that will draw attention.) In 2005, Judge Hamilton ruled that the Indiana legislature must offer nondenominational prayer, rather than invoking Jesus Christ, in offering prayer to open its sessions. The general practice of such prayers, usually called legislative prayers, is widespread and has been upheld by the United States Supreme Court.

That case, Hinrichs v. Bosma, did not actually yield a significant outcome. Ultimately, the appellate court, based on later changes in the law, held that the plaintiffs lacked standing to bring the suit. Nor is the decision by Judge Hamilton important because of any potential political backlash. The Hinrichs decision is not extreme, nor can it fairly be considered anti-religious.

What is important about the case is what selecting Judge Hamilton may suggest about President's Obama's approach in general to the separation of church and state and what that may mean to the future of secularism in the United States.

Decisions by federal trial judges do not necessarily mean much. Trial judges are bound in their decisions both by what the United States Supreme Court has held and also by what the federal court of appeals in that circuit has held. So, there is a sense in which Judge Hamilton can neither be praised nor criticized for his holding in Hinrichs.

Nevertheless, the Hinrichs decision, although by no means a radical one, does suggest that Judge Hamilton has a strict view of the separation of church and state. Most judges, maybe all judges, would have found the particular legislative prayer practices of the Indiana legislature unconstitutional. There were just too many instances in which explicitly Christian imagery was used, including numerous invocations of Jesus Christ. But some judges would, and have, allowed sectarian legislative prayers as one option, as long as other religious traditions were also utilized by a legislature. Matters like this have sometimes been treated as an issue of balance, by looking at legislative prayers as a whole.

In contrast, Judge Hamilton's order banned sectarian prayer altogether. All prayers in the future in the Indiana legislature were to be nondenominational. Not all federal judges would have required that. This order can certainly be defended, but it seems fair to say that Judge Hamilton is a Judge who takes the separation of church and state very seriously. Indeed, the tone of his opinion suggests that Judge Hamilton thinks the State should get out of the legislative prayer business altogether.

Even if that turns out to be true, it would not be that important. Judge Hamilton is not being nominated to the United States Supreme Court, after all.

But the Hamilton nomination would be important if it tells us something about President Obama's preferred position on the separation of church and state. If Judge Hamilton was selected in part because of Hinrichs, the selection suggests that Obama's eventual nominees to the Supreme Court will reflect a pro-separation position.

Candidate Obama was quite schizophrenic during the campaign about the separation of church and state. On the one hand, he insisted that the Establishment Clause required such separation and even at one point told religious believers that they have to "translate" their policy concerns out of religious language into shared secular language in the public square, a position many people consider an infringement of the right of free speech.

Yet, at the same time, Obama ran perhaps the most religiously oriented campaign for President ever by a Democrat. He referred constantly to his Christian faith, spoke often in churches and, for his inauguration, invited Rick Warren to give the kind of invocation that would have been barred had it been subject to Judge Hamilton's order.

No one can be sure which kind of judges President Obama will now select -- strict separationists or those open to permitting the symbols of faith to be expressed in the public square. I hope it will be the latter, but this first pick suggests the former.

That would be unfortunate, for two reasons. First, President Obama really does not need to be associated with culture war fights over the Pledge of Allegiance or Ten Commandments displays. There was even a lawsuit to try to halt his inauguration because of its religious trappings. None of this would be consistent with Obama's expressed hope of expanding Democratic Party attractiveness to people of faith.

But there is an even more fundamental reason to look for a new generation of judges who will not insist on cleansing the public square of religious images. America is rapidly losing its dominant religious flavor and is becoming a much more secular society. Recently, the American Religious Identification Survey revealed that 15% of the American people say they have no religion. This figure has almost doubled since 1990. Since the survey requires self-reporting, the actual number is undoubtedly larger still. And the number will continue to grow.

A secularism this well established needs a source for its ethics and moral education. It can no longer be assumed that early religious training supplies something of that for almost everyone. Many people will not have such training in the future.

Perhaps as a result, some writers -- I include myself here -- are dropping the automatic hostility toward religion that has been a dominant trait of secularism for over a hundred of years and are reexamining the insights and wisdom that our religious traditions have offered. A recent New York Times column by Peter Steinfels highlighted this trend among the group he called the "new, new atheists." New experiments in social arrangements including new mixing of religion and secularism may be coming in our future.

That is, such mixing of secularism and religion may be coming if it is constitutional. That is why this is the wrong time to strictly construe the separation of church and state. It will be better for secularism if it is free to borrow religious symbols in order to ground ultimate meaning and create a sustainable and flourishing human society. Terms such as salvation, redemption -- even God -- can enrich secular contexts and express human hopes in ways purely secular expression can not yet attain. It is to be hoped that in nominating candidates for the federal bench, President Obama will be sensitive to this emerging phenomenon and will ensure that the language of the public square can combine many traditions, including religious ones, in a graceful and flexible way.

Perhaps Judge Hamilton will be that kind of judge. It will be well if he is pressed on these matters during his nomination hearings. In that way, not only may he be sensitized to the need for openness in the public square to our religious traditions, but the one who nominated him may learn something as well.