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 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.
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