Posted by Eugene Volokh:
Religious Test Clause:
I've gotten some e-mail arguing that Senators' objections to judges
who have expressed strongly pro-life views violate the Religious Test
Clause of [1]article VI, clause 3 of the Constitution:
The Senators and Representatives before mentioned, 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.
I'm not an expert on the Religious Test Clause, and my quick research
hasn't found much that's terribly dispositive about its original
meaning. My sense is that it was primarily focused on laws or official
government policies -- which had existed in England -- that required
people to swear that they belonged (or didn't belong) to one or
another religious group. The tests were oaths, hence the placement of
the provision alongside the oath requirement. I'm not sure that the
Clause was understood as extending further, for instance to
religiously discriminatory appointment or confirmation decisions by
particular officeholders; so if a President decides to nominate a
Catholic to some post because he thinks it will help get him the
Catholic vote, or even if a Senator just doesn't like Mormons or Jews
and decides to vote against them, I'm not sure that there's a
Religious Test Clause violation there. The action may well be
reprehensible, but not, at least on these grounds, unconstitutional.
But even if I'm wrong and the Clause was or should be understood as
barring all discrimination based on religion or on inherently
theological beliefs (e.g., on whether the nominee believes in the
Trinity), I think it can't properly be read as barring discrimination
based on beliefs on political issues (at least ones that aren't
inherently religious), such as abortion, capital punishment, war, and
so on.
There are many arguments supporting this position, I think. First,
such discrimination is a political test, not a religious test, even if
a person's political beliefs happen to stem from religion. Second,
saying that it's a religious test when a person's political beliefs
happen to stem from religion would itself be facially discriminatory
in favor of religious nominees. If potential nominee X opposes capital
punishment on secular grounds, and Y opposes it on religious grounds,
it seems to me that the President must be equally free to refuse to
nominate them -- if he really wants appointees who support capital
punishment -- rather than having a right to reject X but no right to
reject Y.
But most importantly, consider: The Religious Test Clause applies to
all officeholders, including executive ones. It was clearly meant to
cover cabinet members, their subordinates, and other executive
officeholders as well as judges. But beliefs on contested moral issues
are an important and necessary part of the President's decisions about
whom to appoint.
A President who strongly believes in enforcement of the death penalty
would want to appoint an Attorney General and other high Justice
Department officials who support the death penalty. If a potential
appointee believes that the death penalty is morally murder, the
President may quite properly refuse to appoint him. It's not enough
that the candidate promises to enforce the laws fairly -- the
President rightly wants zeal (even if, I hope, zeal tempered by
caution) and not just grudging agreement to enforce the law. And such
a decision by the President is proper, I think, whether the potential
appointee's opposition to the death penalty stems from secular reasons
or from religious ones.
Likewise, a President who is appointing Defense Department officials
may well want to avoid people who are morally committed to pacifism; a
President who is appointing officials that will administer a program
that distributes contraceptives may well want to avoid those who are
on the record as viewing contraception as immoral; and the list could
go on. And the same goes for Senatorial decisions about whom to
confirm.
It seems to me the same must apply equally to judges, who are no more
and no less covered by the Religious Test Clause than executive branch
officials. As I've said before, there are lots of arguments as to why
Senators should generally defer to Presidential choices here, or why
they shouldn't reject judges based on the judges' moral views. But the
Religious Test Clause does not provide such an argument -- Senators
are as entitled under the Religious Test Clause to scrutinize judges'
moral views as a proxy for the judge's likely future legal decisions
as Presidents are entitled to scrutinize prospective Attorney
Generals' moral views as a proxy for the Attorney General's likely
future policy decisions.
Finally, consider a hypothetical: Say that it turns out that a
judicial nominee believes that women are morally inferior to men --
not just that they are biologically different in various ways, or even
that society operates better when the law treats the sexes
differently, but that women are unclean and less worthy of moral
concern. Senators say that they'll refuse to confirm this candidate
because of such views, since they're afraid that a judge with such
views will interpret the law in ways that the senators think will be
unjust. "No, you can't do that," says the nominee. "My views about
women stem from my religious beliefs, so your rejecting me based on my
views about women is a violation of the Religious Test Clause." Is he
right? Do the Senators have a constitutional duty to ignore those
views? Would the President have a similar constitutional duty to
ignore the person's views when making a nomination decision in the
first place?
Naturally, I do not believe that Catholic pro-life views are morally
on par with the views of this hypothetical nominee. But surely the
Religious Test Clause doesn't protect only morally sound religions and
not morally reprehensible ones. (The whole point of the Clause was to
treat religions equally, without legal judgment that one or another
religion is reprehensible.) Either (1) considering a candidate's
pro-life, anti-death-penalty, anti-war, and anti-woman views is
equally permissible under the Clause, because it is a political test,
not a religious test, or (2) it's equally impermissible, and
Presidents and Senators must ignore a prospective judge's anti-woman
views, a prospective Defense Department official's pacifist views, or
a prospective Justice Department official's anti-death penalty views.
I think the answer is pretty clearly #1.
References
1. http://www.house.gov/Constitution/Constitution.html
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