CONSTITUTION OF THE UNITED STATES
ARTICLE VI; Cl. 3
The Senators and Representatives..., and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, 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. [Emphasis and bold added.]

Do inquiries by Senators about the intersection of religious beliefs and the performance of official duties constitute a religious test under the terms of the Constitution? Does the refusal of a Senator to vote to confirm a candidate because of that candidates "deeply held personal/religious beliefs" constitute a violation of the Article VI, Clause 3 of the US Constitution? Those are questions we have dealt repeatedly over the last several years. They arise again with the nomination of Judge john Roberts, a faithful practicing Catholic, to the US Supreme Court..

Let me answer the question forthrightly in the negative -- neither situation constitutes a violation of the constitutional ban on religious tests.

Let me explain, in the context of discussing an editorial in the New York Sun.

Senator Durbin of Illinois, fresh from slandering American GIs by comparing them to Nazis, introduced a new slander into the public debate after meeting on Friday with President Bush's nominee to the Supreme Court, Judge John Roberts. Mr. Durbin, according to several press reports, asked the nominee to the high court whether he had considered potential conflicts between the moral imperatives of his Roman Catholic faith and his responsibilities as a judge.

Mr. Durbin's press secretary, Joseph Shoemaker, promptly denied that his boss asked such a question. But law professor Jonathan Turley, who reported on the meeting between Mr. Durbin and Judge Roberts in a Los Angeles Times column that appears on the adjacent page, said he heard about the conversation directly from Mr. Durbin - and confirmed the senator's account with Mr. Shoemaker as well. Mr. Durbin has since clammed up.

Based on the senator's performance so far, it's no doubt a wise policy, one that would serve him well all the way through the confirmation hearings, in which Mr. Durbin will participate as a member of the Senate Judiciary Committee. Interrogating a nominee in respect of his religious beliefs is not only grossly inappropriate. It's unconstitutional. In Article 6, the Constitution provides that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." No, ever, any. It's the most emphatic single sentence in the entire Constitution.

Now let me say that I find the position taken by Senator Durbin to be repugnant. However Durbin, an anti-Catholic Catholic if there ever was one, has raised an important question. How would this nominee respond if the law required one outcome to a case but his faith compelled a different one? On its face, this is not an improper question. In light of the current War on Jihadi Terrorism, it would be prudent to raise a similar question with a Muslim nominee to a high office which dealt with defense, national security, intelligence, or homeland security. Would it constitute a "religious test" for office? No -- it would go to the heart of the issue of the nominee's ability to properly carry out the duties of the office. The issue is not one of religious beliefs per se. Rather, it is focused on the ability of the nominee to do the job for which he or she is nominated. In the current situation, it is designed to determine whetehr or not Judge Roberts has an appropriate sense of the role of a judge and the temperment/character to carry perform in that role.

Now please note tahtDurbin seems to reserve his religious scrutiny for his fellow Catholics who are more faithful to Catholic teachings than he is, and for Protestants with a more fundamentalist/evangelical bent. There is no record of his making such inquiries of jews or non-Christians, nor of those Christians whose religious views are less respectful with the historical tenets of Christianity. As such, I find his questions tinged with a religious bigotry which is fundamentally unAmerican -- but the questions themselves are reasonable and proper.

Now we all know that these religious questions are primarily a proxy for questions about abortion and the religion clauses of the First Amendment. Again, these are proper areas for scrutiny. If a hypothetical nominee were, for example, a member of the Christian Identity Movement (White Supremacy dressed up with a facade of theology), would it not be proper to inquire about the nominee's ability to uphold the Fourteenth and Fifteenth Amendments to the US Constitution, as well as the Civil Rights Acts enacted pursuant to them? Of course it would -- and the failure of the nominee to give "the right answers" would be a more than sufficient basis for rejection without running afoul of Article VI.

But how does that square with the many weighty and serious quotes from the Founders regarding religious tests for office?

How could the Founders of America have made it any more plain? From Tench Coxe, in his examination of the Constitution ("No religious test is ever to be required of any officer or servant of the United States. The people may employ any wise or good citizen in the execution of the various duties of the government") to William Lancaster of North Carolina ("... we form a government for millions not yet in existence. I have not the art of divination. In the course of four or five hundred years, I do not know how it will work. This is most certain, that Papists may occupy that chair, and Mahometans may take it" ) to Luther Martin ("there were some members so unfashionable as to think that a belief of the existence of a Deity, and of a state of future rewards and punishments would be some security for the good conduct of our rulers, and that in a Christian country it would be at least decent to hold out some distinction between the professors of Christianity and downright infidelity or paganism") to Edmund Randolph ("A man of abilities and character, of any sect whatever, may be admitted to any office or public trust under the United States"), the Founders debated the religious test from every angle and then, by an overwhelming margin, excluded it.

The answer, of course, is to understand what constituted a religious test in the mind of an educated American in the latter part of the eighteenth century -- to strictly construe the original intent of the text at the time of its writing and adoption. These were men whose context was fundamentally British, and whose historical points of reference were usually those which came from that heritage. It is no accident, for example, that the rights protected in the Bill of Rights are a reaction to the abuses of the British monarchs over the previous two centuries. Viewed in that context, the prohibition on religious tests is designed to prevent the imposition of "test oaths" which excluded members of certain sects from holding public office or exercising certain rights. The most famous of these were the anti-Catholic oaths which forced individuals to repudiate certain tenets of the Catholic faith and the authority of the pope. Those who refused to take such an oath were barred from public offices and faced certain restrictions on their liberties. Such is not the case with Durbin's questions, which could NEVER rise to the level of a "religious test" in the sense intended by the Founder. Durbin's refusal to vote for a candidate because of those views also does not violate the religious test provision, any more than my refusal to vote for a Satanist does.

Mr. Durbin insisted to reporters last week that he wasn't interested in applying a "litmus test" to judicial nominees. The senator told Judge Roberts, "If you will be honest and forthcoming, you're going to find a warm reception from our side of the aisle, even if we disagree with you on any given issue." But two days later, Mr. Durbin went on NBC's "Meet the Press" to say that if Judge Roberts did not find an implied right to privacy in the Constitution, on which the right to abortion is based, "It would disqualify him in my mind."

Now notice, please, that Durbin's basis for giving or denying his vote is NOT religious, but is instead based upon constitutional interpretation. That is a legitimate basis for a Senator to use in making a decision. After all, a nominee who stated that he believed that Plessy is right and Brown is wrong would merit rejection. While I disagree with Durbin's litmus test (and it is a litmus test, despite his protestation to the contrary), I don't have a problem with rejecting a nominee on the basis of jurisprudential principles, regardless of the source of the "deeply held personal beliefs" which lead to such a conclusion. I wish we on the conservative side had made a practice of doing so over the last few decades.

Yet the Democrats persist. "You wouldn't run for the United States Senate or for governor or for anything else without answering people's questions about what you believe," Senator Bayh of Indiana said this week. "And I think the Supreme Court is no different." This attitude is the side effect of using the courts to make laws rather than interpret them. But it will be an even greater debasement of the Constitution to see the judicial nomination process tarred by religious bigotry. Forty-five years after America finally elevated a Catholic to the presidency we will see whether Senators Durbin, Leahy, Schumer, Kerry, and Kennedy recognize that Judge Roberts can't be tested on his "deeply held personal beliefs" in respect of religion.

Now I will agree with one statement here -- it is a debasement of the Constitution for religious bigotry to enter into the confirmation process. That said, it is not a violation of the Constitution for religious bigots like Senators Durbin, Leahy, Schumer, Kerry, and Kennedy to reject a nominee based upon such bigotry, any more than racist Senator Robert Byrd's votes against the only two African-Americans ever nominated to the Supreme Court did not violate the Constitution despite violating fundamental principles of human decency. For all their appeals to that which is worst in human nature, their questions and their votes do not violate the Constitution. To claim otherwise is to violate the very originalist principles that we conservatives ask our judges to apply.

Posted by: Greg at 05:17 AM | Comments (1) | Add Comment
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