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Fearless Philosophy For Free Minds: A Religious Litmus Test?

Thursday, August 18, 2005

A Religious Litmus Test?

Certain social conservatives, Catholics, and Evangelicals are concerned that the current Supreme Court nominee, John Roberts, will be discriminated against because he is a practicing Catholic. Senate Democrats may attempt to block Roberts on the theory that he will base his rulings on the edicts of the Pope. Would this be a legitimate reason to block Roberts from the Supreme Court?

The Constitution is very vague in some areas. Legal scholars disagree on such things as whether or not the founders intended there to be a separation of church and state in what is known as the establishment clause of the First Amendment, whether the right to bear arms found in the Second Amendment is an individual right or a collective right (it is clearly an individual right), and whether or not a right to privacy exists. While there is room for thoughtful, intelligent debate for all these controversies, the Constitution is very clear on the issue of religious tests for office holders.

Article VI, Clause 3:

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.

This clause seems to bolster the argument for a separation of church and state but clearly does not bar anyone from holding office based on his or her religious beliefs. Prior to the passage of the U.S. Constitution, some states required representatives to be members of a certain church or denomination (this was the case for many of the delegates to the constitutional convention). James Madison and other delegates recognized that continuing to have this restriction could cause much more harm than good over the long term based on Europe’s bloody history. Instead, Madison et al wanted to make certain that all men would be treated equally under the law, recognizing the individual has the right to his freedom of conscious. If individuals were to retain this right, allowing office holders to have a free conscious was also necessary.

If this is the case, how can we guard against an individual who would sacrifice the Constitution on the basis of his or her religion? Notice the first part of the last sentence of this clause: “…shall be bound by Oath or Affirmation, to support this Constitution...”

The first requirement of an office holder in the United States is to uphold the Constitution, regardless of his or her religious beliefs (or any other beliefs for that matter) which may be to the contrary. If Judge Roberts can agree to do just that and prove before the Senate that his allegiance is to the Constitution rather than the Vatican, his Catholicism should not be an issue.


Blogger Robert said...

You’re absolutely right, but there’s one small problem: Joe Sixpack (the one to whom Senators pander) has no clue what the Constitution says. Whether Joe is on the Left or the Right, he ‘knows’ what he sees on X cable news channel. Me, cynical…nah.

6:42 PM  
Blogger Gary B said...

Thanks for this post, Stephen. This conscience protection in the Constitution is heartening.

The clause affirms what I've said for a long time: the institution of the Church cannot intrude on the governing of the people, but there is nothing wrong with public servants or citizens making decisions or voting based upon their beliefs as long as they uphold the Constitution first.

*Everyone* is led by their various beliefs. So it is unfair to hold that secularists can make public decisions based upon their secular beliefs, but religious people cannot make them based upon their religious beliefs. You may question the specific wisdom of such a decision, but there is no ground to questions its constitutionality simply because the source is a person whose morals are informed by his or her religious beliefs.

Blatant imposition of religious practices--prayer and other rituals--would be unconstitutional, but any general moral position--on abortion, or marriage, for example--is not a religious imposition, it's simply one's moral conviction which happen to be informed by a religious belief. You can say such a position is "arbitrary" because its religious source, but it goes to far to say it's a violation of church-state separation.

And Roberts has already stated that the Constitution comes first, then his beliefs.

11:09 AM  
Blogger Stephen Littau said...

Hey, great to hear from you Gary! It has been awhile since I’ve heard from you (I was a little surprised that some of my recent posts didn’t get a rise out of you as it did many others).

I haven’t studied judge Roberts all that much yet. I’m sure his judicial philosophy will come to light during the confirmation hearings. So far, I’m under the impression that he would be a decent Justice. I’m just thankful the president didn’t select a Roy Moore or Robert Bork type (I don’t think)– both of whom seem to put their personal beliefs ahead of the Constitution.

12:24 PM  

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