U.S. Constitution: “No religious test shall ever be required as a qualification to any office or public trust”
In an editorial entitled Judging While Catholic: Do journalists understand that the Constitution prohibits religious tests for officeholders?, Manual Miranda provides all of us with a tutorial on religious tests and the U.S. Constitution:
John Roberts will be the fourth Roman Catholic on the current Supreme Court, but only the 10th Catholic among the 109 justices who’ve served in the high court’s 215-year history. A few senators and a good many journalists have made much of it.
Earlier this week, in a span of minutes, three journalists asked me to respond to liberals, like Sen. Richard Durbin (D., Ill.), raising Judge Roberts’s religion as a confirmation issue…Minutes before penning this column, a fourth prominent political reporter startled me further by asking: “What religion test clause? Where does that appear?”
Well, here, everyone jot this down. “The line” appears in Article VI of the U.S. Constitution: “No religious test shall ever be required as a qualification to any office or public trust under the United States.”
Much bigger than the obvious problem of overreaching Democratic senators (because it is obvious) is that Americans are depending on journalists to catalyze the most important public debate outside an election: the confirmation of a Supreme Court justice…The preface to one [Pew Research Center] 2004 report notes:
Journalists at national and local news organizations are notably different from the general public in their ideology and attitudes toward political and social issues…news people, especially national journalists are more liberal, and far less conservative, than the general public.
Most Americans know this by now. Some may know the result of another Pew survey that found most journalists were overwhelmingly irreligious. What we do not know is how many journalists read, much less understand the Constitution…Here are two sightings from this week alone.
In Monday’s Boston Globe, columnist Cathy Young, also a contributing editor of the libertarian Reason magazine, concludes: “A candidate’s or nominee’s ideology should be fair game whether it’s religious or secular in nature, whether it’s rooted in conservative Catholicism or liberal feminism.”
More interesting is how Ms. Young gets to this conclusion. While applauding John F. Kennedy’s milestone election as the first Catholic president, Ms. Young recites Article VI, but she conflates the religious test clause with the provision that officeholders “shall be bound by oath or affirmation, to support this Constitution.” She interprets this to mean that “an officeholder could not be required to take an oath or perform a religious ritual affirming his allegiance to a particular religion or denomination, or even a general belief in God.”
Ms. Young thinks it’s about cookie-cutter discrimination, and not about protecting actual religious beliefs. In fact, the two clauses are quite separate in their intent. Their distinct origin is itself telling. At the Constitutional Convention most proponents of the Oath Clause sought to ensure the public servants were “sincere friends to religion,” but greater forces than that had been lobbying to ensure that there would be no “religious test” for public office…
Requiring an oath or affirmation in taking public office was the Framers’ nod to God, the requirement that no particular set of religious beliefs be required of office holders was their nod to their painful experience with the religious intolerance of England.
In Wednesday’s Washington Post (“Why It’s Right to Ask About Roberts’s Faith”), columnist E.J. Dionne asks: “Is it wrong to question Judge John Roberts on how his Catholic faith might affect his decisions as a Supreme Court justice? Or is it wrong not to? . . . Why is it wrong to ask him to share his reflections with the public?” It would be helpful, Mr. Dionne concludes, “if Roberts gave an account of how (and whether) his religious convictions would affect his decisions as a justice.”
Mr. Dionne’s error is found is his own words: “Yes, any inquiry related to a nominee’s religion risks being seen as a form of bigotry, and of course there should be no ‘religious tests.’ ” Indeed. And that is the problem, again.
Journalists believe that the religious test clause guards against simple discrimination against Catholics or Jews or any other particular denominations. It does not. It prohibits a probe of what the potential officeholder believes derived of his religious convictions. It is not about what he lists on a questionnaire under religion, as if it were like race or sex. That is why the liberal press has mocked the concern raised by conservatives that the abortion litmus test and other lines of inquiry are a constitutionally prohibited religious test.
When England passed its two Test Acts, they did not prohibit Catholics from holding public office. Rather, the “test” sought to exclude anyone from holding public office who believed that the bread and wine in the ritual of the Eucharist turned into the body and blood of Jesus Christ, a fundamental tenet of Catholic belief.
Fortunately, Mr. Durbin and Sen. Chuck Schumer (D., N.Y.) have shied away from that line of inquiry, since their clients haven’t figured out how to profit from it…
The U.S. Constitution is quite clear that there shall be no religious test. Of course, since left-wing Senators Schumer and Durbin don’t believe in being guided by the original intent underlying the U.S. Constitution, none of us should find it surprising that they are willing to twist the religious test issue to meet their political objectives.
Several of the other postings listed below elaborate further on Senator Schumer’s crass methods, methods driven by raw power objectives instead of principles that have any connection to the Founders’ beliefs embodied in our Constitution.
Here are some previous postings on the Supreme Court nomination process, with an emphasis on the proper role of the judiciary:
Judicial Activism: Commandeering the Public Debate & Violating the Founding Principles of America
“The Supreme Court Has Converted Itself From a Legal Institution to a Political One”
Are You an Originalist?
How Original Intent Does Not Equal Conservative Judicial Activism
Rediscovering Proper Judicial Reasoning
Playing the Religious Bigotry Card, Again
How the Left Blurs the Distinction Between Judging & Politicking
Senator Schumer’s Double Standard
Nothing But a Fishing Expedition
“Restoration of Judicial Restraint Assists the Restoration of Good Will, Because Democratic Governance Gives Everyone Their Say”
The Ginsburg Precedent
Orrin Hatch: Don’t Overstate “Advise and Consent”
Senator Santorum: Judicial Activism is Destroying Traditional Morality
Relinking Constitutional Law & Jurisprudence to the Constitution
What is the Federalist Society?
The Kelo Decision: When Private Property Rights are Eroded, Our Freedom is Diminished
Here are two examples of how the Left views the same issues:
Viewing the Supreme Court Nomination Battle From the Far Left
“We Are Going To Go To War Over This”
Here are other postings on this site about the related issue of the judicial filibuster debate:
The Injustice of Smearing A Fellow American For Political Gain
The Senate Judicial Filibuster: Power Politics & Religious Bigotry
Mac Owen’s open letter to Senator Chaffee
Senator Mitch McConnell on the Judicial Filibuster
The Foolish Fourteen: An editorial by the former Dean of BU’s Law School
A Power Line overview of the filibuster debate
Revisiting the Case for Janice Rogers Brown