Religious Tests in the Mirror

Did the Administration do anything wrong in invoking Harriet Miers' faith in promoting her nomination to the Supreme Court?  Would the members of the Senate have done anything wrong if they had questioned, or opposed, John Roberts based on his religious faith?  The answer to these questions has much to do with the Religious Test Clause of the Constitution, which states that no religious test shall ever be required as a qualification to any office or public trust under the United States.  During these nomination battles, some observers argued that the Religious Test Clause would forbid the Senators from questioning Roberts on his faith, on his religiously derived beliefs, or on the relationship between his faith and his role as a Justice.  Similarly, many observers suggested the President's apparent efforts to sell nominee Miers on the basis of her faith crossed the line marked by the Religious Test Clause.  Were these observers right?

In my paper, Religious Tests in the Mirror: The Constitutional Law and Constitutional Etiquette of Religion in Judicial Nominations, I argue that they were wrong.  Nothing in the Religious Test Clause ultimately forbids any of the actions we saw in the wake of the Roberts and Miers nominations -- nor did it forbid the kinds of questions we saw raised in the wake of the nomination of William Pryor to the Eleventh Circuit.  Indeed, it would not forbid the President from expressly selecting a nominee on the basis of that person's faith, or a Senator from expressly opposing a nominee on the same basis.  But just because the Religious Test Clause does not operate in this area, that does not mean we cannot hold a productive conversation about the "constitutional etiquette" of such behavior; we can still try to craft guidelines that help us to evaulate how people should talk about religion in the context of judicial nominations -- and, not incidentally, how people should talk about religion in the public sphere more generally.

Comments are welcome.  Honestly.  I'm always eager to find new readers, and the paper is early enough in the pipeline that I can still benefit from reactions and suggestions.  For those with time on their hands, the abstract is after the jump -- or you can just read the paper....

The Religious Test Clause of the United States Constitution states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Although it is the only place in the main text of the Constitution that mentions religion, it has been habitually ignored – until now. In the past several years, a spate of lower federal court nominations and two Supreme Court nominations – the successful nomination of Chief Justice John Roberts and the abortive nomination of Harriet Miers – have occasioned public debate over whether the Religious Test Clause forbids Presidents and/or Senators from supporting, opposing, or even questioning nominees on the basis of religion. More broadly, these events have been the occasion for discussions about whether and how religion may be raised in the public debate surrounding judicial nominees. Because the Roberts and Miers nominations present neat mirror images of each other, with religion used as a disqualification in one nomination and a qualification in the other, it is an opportune moment to assess what the Religious Test Clause has to say about these cases, and about the use of religion in the federal judicial nomination process more generally.

This article, a contribution to a Symposium on “Religion, Division, and the Constitution,” is the first to fully examine these questions. After discussing the invocation of the Religious Test Clause in the recent nomination controversies, it looks carefully at the text and history of the Religious Test Clause. It argues that the Religious Test Clause precludes Congress or the President from imposing a formal test oath on would-be federal office-holders that would require them to avow or disavow, under oath, allegiance to a particular faith or set of religious doctrines. And that is all it does. A President may select nominees on the basis of their faith if he chooses; a Senator may question a nominee on his or her faith or religiously derived beliefs, or support or oppose a nominee on that basis. Thus, those public officials, public figures, and commentators who argued during the recent nomination process that the Religious Test Clause barred certain actions or inquiries were wrong.

I argue that this conclusion is not only descriptively accurate; it is also normatively sound. There are many plausible reasons why a President or Senator might validly inquire into the faith, or religiously derived beliefs, of a nominee. To silence such inquiries because of the dangers of intermixing religion and politics ultimately disserves the broader principle that religion ought to be a fully welcome part of discussion in the public sphere. In addition, the broad reading of the Religious Test Clause, by constitutionalizing an area of politics, unduly limits the scope of popular responsibility for the political process. The best remedy for abuses of religion in the judicial nomination process lies in the realm of ordinary politics, and not in the Constitution.

Although the Constitution thus provides few if any barriers to the use and abuse of religion and religious rhetoric in the federal judicial nomination process, nothing prevents us from attempting to craft evaluative criteria that might lead to more fruitful uses of religion in public debate, and to guide our understanding of how well or poorly religion has been used in the public debate surrounding judicial nominations. The article thus offers several principles of “constitutional etiquette” that might guide our understanding of the sound use of religion in this context, and measures the recent nomination controversies against these standards. It concludes that even with these criteria in place, the invocation of religion in judicial nominations, as elsewhere, may lead to more rather than less division in our national politics. But the price is well worth paying, if our public discussions become richer and deeper as a result.