Politics & Policy

Religious Tests

Where some Dems want to go, but shouldn't.

In recent memory there have rarely been nominees to the Supreme Court with credentials as distinguished as John Roberts.

He is a graduate of Harvard College and Harvard Law School; he had clerkships with two judges, Friendly and Rehnquist, spoken of in hushed tones by those who care about those sorts of things; he amassed a record as a brilliant advocate before the United States Supreme Court (to whose arguments Supreme Court clerks–a jaded group–would come for edification).

With a record like that, Roberts could be expected to sail through his confirmation hearings and become the next chief justice of the Supreme Court.

There are rumblings, though, that Roberts’s religion–he’s Catholic–could be raised against him, and there are dark intimations coming from some quarters of the Senate and some liberal advocacy groups that a practicing Catholic who takes church teachings seriously cannot be trusted to assume a position on the Court.

The idea seems to be that since the Church is firmly opposed to abortion, the death penalty, and homosexual marriage, Roberts could not, consistently with his deeply-held religious beliefs, even-handedly administer justice in these areas.

Perhaps it is a mark of the desperation of Roberts’s opponents that his religion is now being raised against him, but those of us who believe in the Constitution and in the objective interpretation of that document need to cut off the head of this argument and drive a stake through its heart before it does further damage.

There is a clear provision in the United States Constitution, Article VI Clause 3, which provides that there shall be no religious tests for federal office. This reflects the belief of the framers that one’s religion is a matter between one’s God and one’s self, and should not play a role in determining suitability for public office.

The notion that Catholics, Protestants, Jews, or adherents of any other religion need not apply is utterly foreign to our Constitutional traditions, however much religious bigotry was an evil undercurrent in our popular history.

Senate hearings over Supreme Court nominees are a fairly new phenomenon, and until the fourth decade of the 20th century it was rare for nominees even to appear in person at hearings over their nomination. Historically, there have been nominations to the court–Justice Brandeis comes to mind–where religion was whispered about as a disqualifying factor.

In more recent history, nominations to the Court have become political circuses, or perhaps ideological wars, even to the point of the nominee’s religion being called into question.

During the confirmation hearings of former Attorney General John Ashcroft, Senate Minority Leader Harry Reid said “I think we have a right to look into John Ashcroft’s religion.” During Judge William Pryor’s confirmation hearings for a federal bench in Atlanta, Senator Charles Schumer said he was troubled by his “deeply held personal beliefs.”

Such incivility has even extended beyond confirmation hearings. Just this past June, Senator Tom Harkin said this of Christian broadcasters: “They are sort of our own home grown Taliban.”

The upcoming hearings and floor debate should be devoid of such remarks.

It is legitimate for the Senate to explore with Judge Roberts his philosophy of judging, and perhaps even his beliefs about the connection between law and morality. It is indisputably true that our earliest federal judges believed that we could have no order without law, no law without morality, and no morality without religion. These may be general matters about which Judge Roberts could be enlightening to his Senate questioners.

For them, or for anyone else to suggest, however, that the fact that he adheres to any particular religion is a disqualification for office would be to embrace, at least analogously, the evil sought to be prevented by the Constitutional prohibition of religious tests. It would also reveal an intolerance of a kind that has no place in the Senate or any other part of American life.

While most senators will likely be sensitive to the issue of religious faith, we are rightly concerned especially about activist groups which have staked their reputations on Roberts’s defeat.

Everything we know about Judge Roberts at this point suggests that he is that very rare breed of American lawyer who believes that the duty of a judge is objectively and fairly to apply the law whatever his personal or religious predilections.

His religion ought to be off-limits in his confirmation hearings, as it should be for any nominee.

Stephen B. Presser is the Raoul Berger Professor of Legal History at Northwestern University School of Law and the Legal Affairs Editor for Chronicles: A Magazine of American Culture. He is the co-author of The American Constitutional Order: History, Cases, and Philosophy. Professor Charles E. Rice is professor emeritus at Notre Dame Law School

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