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Tuesday, September 27, 2005

A Religious Test Too Far

Let's imagine for a moment that President Bush this week nominates an ardent Satanist to replace Sandra Day O'Connor on the Supreme Court.  (Hey -- it could happen!  I once saw a young man at my local Catholic church wearing a jersey with "Satan" boldly lettered across the back.  Turns out he's a hockey player, but still. )  There is no doubt that the Senate could not bind the nominee by oath to renounce Satan and all his work.  But what if a Senator were uncomfortable with a devil-worshipper on the Court?  (I know folks on the left and right wings think this is already the case, but never mind that.)  What if the Senator were fine with the fact of the nominee's Satanism, but concerned that rooting for chaos is inconsistent with the rule of law; or worried that the Satanist would not honor his oath when being asked to judge the religious claims of Christians?  Would that Senator, if she cast a no vote, be acting unethically?  Unconstitutionally?

It seems to me the Becket Fund for Religious Liberty answers both these questions "yes."  The Fund recently sent a letter to the members of the Senate.  It is apparently "appalled by the misuse of religion some are urging on the United States Senate."  It argues that "a decision to disqualify a nominee based on his or her religion . . . violates Article VI [the Religious Test Clause, specifically], and thus the Senator's oath of office."  It accordingly threatens to bring an ethics complaint against any Senator "who uses religion as a disqualification for federal office."  (I had thought Senate rules did not permit outside parties to bring ethics complaints, which would make the threat especially empty.  Am I wrong on this?)

Now, I am a big fan of much of the Becket Fund's work, a good friend works there, and I have greatly respected the folks I've met there.  But I think they're simply wrong on this one.  As the Fund cannot help but acknowledge, the Religious Test Clause was a specific response to the long-standing practice, in England and the colonies, of expressly requiring individuals seeking public office to swear oaths asserting the nominees' affiliation with particular denominations or agreement with particular theological propositions.  That was the evil aimed at by the Test Clause, a fact underscored by its placement in Article VI as a corollary to the Oath Clause: "[government officers are to 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."  Folks today may think that's not much of an achievement, and that the clause ought to be read for more than that.  But it did achieve an important purpose, given the seriousness with which oaths were taken in this period; that this is no longer the case speaks to the degradation of the importance of oaths in the modern era, not the meaning of the clause.

The Fund acknowledges that no one is talking here -- ie., in the case of Judge Roberts or future nominees -- about "explicit religious tests."  But it says that "many [I'm sorry, Eugene, but this is a weasel word] are urging the United States Senate to apply a subtler form of religious test in the confirmation process."  Alas, the Fund does not spell out what that subtler form of religious test is; it refers later in the letter to "using fervent religious faith" as a disqualification, but I think it is fairly clear that the Fund is referring to more than this.  Rather, it seems the letter is referring to Senators who believe a nominee's adherence to religious doctrine might lead him to wrongly (by their lights) interpret the Constitution, or lead them to place religiously motivated ideology ahead of their judicial oath.  The problem is that, the "subtler" the form a "religious test" takes, the more it simply reduces to a Senator believing that a nominee's ideology, which could be religiously motivated but need not be, is inconsistent with service on the Court.  Senators are generally free to reject nominees for ideological reasons, and those ideological reasons surely include religiously motivated ideological reasons.  If you believe the Constitution forbids abortion, and that a nominee fiercely believes in the value of abortion and will interpret the Constitution to achieve abortion for all, it is not improper to reject that nominee -- even if their advocacy of abortion is religiously motivated. 

This is all a far cry from requiring an individual to swear an oath setting out particular religious views.  I agree with the Fund that some of the discussion that took place around the Roberts nomination betrayed a crude understanding of the intersection between law and religion, but that does not justify misreading the Religious Test Clause.      

Two further observations.  First, if the Fund believes "subtler" forms of religious tests might violate the Clause, it seems to me they ought to address on an equal basis other "subtle" forms of religious discrimination.  Nominees are asked in Senate disclosure forms to state their religion; does the Fund object to this question?  And what of the panoply of legislative acknowledgements of religion -- chaplains, invocations, and the like?  To be sure, the Supreme Court has said that these practices are historically well supported; but, having overleapt the original understanding of the Religious Test Clause in favor of sweeping reading of the Clause, the Fund is already in the realm of non-originalist reasoning and can hardly appeal to it elsewhere.  And what of litigation over teaching evolution or intelligent design, on an equal or unequal basis, in the public schools?  If the Fund believes that an otherwise acceptable vote can be rendered the stuff of an ethics complaint because of the motive of a Senator, does it believe that the federal courts in Establishment Clause cases may inquire into legislative motives, or that the first prong of Lemon v. Kurtzman ("the statute must have a secular legislative purpose") is unobjectionable?

Finally, there's an irony here.  The Fund says in its letter, "not every mention of religion is improper.  Religion, like ethnicity or race, is a natural part of one's background and may be referred to as naturally -- and as respectfully -- as those other things are."  Really, though, it moves perilously close to meaning that religion may be referred to publicly "only as respectfully as those other things are."  But this is ultimately the opposite of respect.  To genuinely respect religion, as we should, is to take it seriously -- as we should.  And to genuinely take it seriously may sometimes mean to debate it (or particular religious doctrines or views or arguments), to disagree with it (ditto), even to argue that a particular religious view is unworthy of respect.  Like the Becket Fund, I believe strongly that religion has a vital role to play in public discourse and debate and should not be excluded from the public square.  But to take this view seriously means that religious views -- not like ethnicity or race, but like ideology, politics, and other strongly held views -- is, for most purposes, entitled to be praised or condemned just as those other things are.    

Posted by Paul Horwitz on September 27, 2005 at 11:53 PM | Permalink


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My hunch is that an avowed atheist would have a harder time getting confirmed than someone deeply religious; I think that'll have to remain an untested hunch because I don't foresee such a nominee being appointed anytime soon (and not just because of the preferences of President Bush).

Posted by: Scott Moss | Sep 28, 2005 8:18:56 AM

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