The Religious Test Clause and the Roberts Nomination

An offhand remark in an earlier post of mine and subsequent comment, along with the Roberts nomination, lead me to the question whether Judge Roberts' Catholicism is a valid subject of questioning in any confirmation hearing, or whether questions that might be perceived as relating to his faith are permissible. 

The question is relevant because of Article VI, Clause 3 of the Constitution, which states in part that state and federal officers "shall be bound by Oath or Affirmation to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."  It is also relevant because of recent efforts by interest groups involved in judicial nominations to suggest that Democratic opposition to some nominees represented a form of anti-Catholic bigotry, and because of some  interest in the pro-life commitments of Roberts' wife.  (See here.  The article does not name any interest groups that are openly pursuing the issue, and quotes Sen. Kennedy suggesting the issue is out of bounds.  Tell that to the folks I heard on my local Maoist radio station, KPFK, this morning.)  Although this nomination may not resurrect such matters, I assume some groups are willing to raise and publicize the anti-Catholic charge if much questioning turns on the abortion issue.

So the question is:  Is it a violation of the Religious Test Clause to question a nominee on his religion, or vote against him based on his religion?  We might ask a second question:  Does it violate the Religious Test Clause to question a nominee on his personal views on issues such as abortion, even if religion is not mentioned, where those views may be linked to the nominee's religious views?  (See here for more on how this question has emerged.)  My answer to both questions is no, although it is possible the first question is closer than the second.

Let me emphasize at the outset that I am asking whether such questioning, or voting, would violate the Religious Test Clause.  I am asking whether Senators may engage in such conduct.  I am not asking whether they should.  My view is that they should not ask about a nominee's religious views.  Further, although as a practical matter a person's personal views may affect his judicial views, I think questions about a nominee's personal and/or political views should also generally be avoided.  The relationship between personally held views and judicial views is complicated, and a Senator is better off avoiding that murk and focusing on how a nominee would decide cases, which may include substantive views about the law, but not personal views.  (Of course, a Senator might take the view that she is entitled to oppose a nominee whose personal views she finds offensive, regardless of their relationship to his jurisprudence.  I believe the statement is accurate but would generally disagree with such a vote.  Or she might ask such questions, knowing that a nominee's personal views are only tenuously linked to his actions as a judge, in order to use those views to paint a judge as falling "outside the mainstream."  I would more strongly disagree with such an approach.)

My view is that the scope of the Religious Test Clause is too narrow to cover either of the questions I posed above.  Although I think the question is closer, I think this is even true of the first question -- whether a Senator may, consistent with the Clause, question a nominee on is religion, or vote against him based on his religion.  We might say that the second half of this first question is closer than the first half.  Sanford Levinson, in his book Wrestling With Diversity, draws such a distinction.  But I think neither situation is covered by the Religious Test Clause.

Strictly speaking, the Clause is, I think, best read as barring precisely the sort of tests that it was historically intended to address: namely, English and/or state laws that required officeholders to swear allegiance to particular faiths or religious tenets.  The taking of such oaths literally stood as a prerequisite to the holding of office.  As Levinson's work suggests, this is a far cry from suggesting that the framing generation thought an individual's beliefs always were irrelevant to his fitness for office; but they were unwilling to condition office-holding on the taking of religious oaths.  Keep in mind, after all, the context of the Clause, which follows closely upon the imposition of an oath requirement for state and federal office-holders; contemporary discussions suggest that the Test Clause was indeed understood as being intimately related to the preceding clause.  Keep in mind, too, that the founding generation took oaths profoundly seriously, as my current research certainly suggests; thus, even if the Clause only applied to test oaths involving religion, it would have been a significant change in then-contemporary practice. 

(Let me add that this view invites the response that we ought to read the Clause more broadly, and not treat it as so narrowly applicable to test oaths -- especially in light of the diminished importance of oaths per se in contemporary society.  I think the specific language of the Clause, and its place in Art. VI, cl. 3, cuts against this suggestion -- although I appreciate the potential irony involved in liberals arguing for a narrow textualist/originalist reading of the Clause and conservatives arguing for a "living Constitution"-type reading of the Clause.)

Given that reading of the Clause, I do not think questioning a nominee on religious issues, even if unwise or improper, is unconstitutional.  Although this point is closer, I also do not think it would be unconstitutional to oppose a a nominee based on his faith, or lack thereof.  It might be outrageous, but not unconstitutional.  This is especially true because a Senator could plausibly, if quite shallowly, believe that a particular nominee's religious views would make it impossible for him to do an important part of the job.  In these instances, faith obligations and substantive aspects of the Constitution or the judicial role are so inextricably intertwined that it is difficult to say the vote would be anti-religious so much as it would be based on a Senator's view of what the Constitution and the judicial role demand.  To take a hypothetical, say that a nominee holds the view that he is actively obliged to oppose the death penalty in every way, and that such obligations take absolute precedence over any obligations to obey civil law.  Could such a nominee, if sitting as a district court judge, preside over a trial in a capital crime?  Or, if sitting as a Justice, fairly hear a claim that the death penalty is unconstitutional?  It seems to me that a Senator could reasonably conclude that such a nominee would be unable to fulfill an important function of the judicial office, and could vote against the nomination.  (For a variety of reasons, I do not think this hypo tracks the question of abortion and Catholic judges.  I think some of the public discussion of this issue, in various circles, betrays a set of shallow assumptions about Catholicism -- and, on the other side, sometimes suggests shallow assumptions about the Constitution.) As I said, I think this question is the closer question, and I'm happy to hear comments -- keeping in mind that my remarks have addressed whether certain questions or votes are constitutional under Article VI, not whether they are wise or good.

Given this conclusion, I think the second issue -- can you ask a nominee about his own views on an issue, such as abortion, while avoiding the religious question directly -- is still less constitutionally objectionable. To ask a nominee whether, for instance, he thinks abortion ought always to be illegal, or whether he thinks it is ever morally justifiable to put a prisoner to death, or whether he thinks witches ought to be treated differently under the law, is not to set a qualification for public office as such; nor, in any event, does it ask a narrowly religious question.  It may suggest that the Senator asking the question has a shallow understanding of the relationship between personal views and judicial actions, as I suggested above; but it is not the same thing as requiring a nominee to take a religious oath as a condition of office, which is centrally what the Religious Test Clause prohibits.

For more on this question, I recommend J. Gregory Sidak's interesting article, True God of the Next Justice, 18 Const. Comment. 9 (2001) -- a good read, although I am entirely unpersuaded by it.