Senator Sheldon Whitehouse, a Democrat from Rhode Island, asked a nominee to a federal district court about his church. Whitehouse begins his first question for the record thus:
You are an elected member (until 2020) of the Falls Church Anglican, which broke away from the Episcopal Church largely due to the denomination’s consecration of an openly gay bishop. The Falls Church Anglican considers “marriage to be a life-long union of husband and wife” intended for “the procreation and nurture of godly children” and entailing “God-given” “roles of father and mother.” In 2015, the associate pastor of the Falls Church Anglican agreed that “if the U.S. Supreme Court decision includes a redefinition of marriage, this will constitute an intrusion of the state on God’s institution of marriage ‘from the beginning’.”
Whitehouse then asks nominee Trevor McFadden seven questions based (loosely) on these facts about his church. Whitehouse asks McFadden whether he agrees with the associate pastor, for example. Several other questions relate to whether McFadden could faithfully apply the Supreme Court’s Obergefell v. Hodges decision, which required governments to recognize a fundamental right to same-sex marriage.
To see what’s wrong with this line of questioning, it might be helpful for liberals to flip this scenario. Imagine that a member of a liberal congregation was up for a judgeship and a senator asked: “I see that your church, the United Church of Christ, has taken a strong stand in favor of same-sex marriage and against religious exemptions from discrimination laws. In a pending Supreme Court case, it says that the First Amendment should not protect a baker who does not wish to make a cake for a same-sex wedding. Your church has also condemned the Supreme Court for protecting religious liberty in the Hobby Lobby case. Can you be trusted to apply the First Amendment and the Religious Freedom Restoration Act fairly?”
Or: “You are a member of the United Methodist Church, a strong supporter of President Obama’s executive action on illegal immigrants who came here as minors. Can you impartially adjudicate claims about the legality of that action?”
Some nominees may have actually said or done something that raises questions about their ability to be impartial judges. Mere membership in a religious organization — even if that organization has views on legal questions, or on moral questions related to legal questions — does not raise any legitimate or reasonable questions about impartiality.
If Roy Moore gets to the Senate and asks nominees questions like my hypothetical ones about religious liberty and immigration, he will deserve condemnation. As Senator Whitehouse deserves it now.