Document Type

Working Paper

Publication Date

4-27-2006

SSRN Discipline

Economics Research Network; Legal Scholarship Network; *Humanities - Forthcoming Areas; Religious Studies Research Network; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Cognitive Science Network; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network

Abstract

The Religious Test Clause of the United States Constitution states that no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States Although it is the only place in the main text of the Constitution that mentions religion it has been habitually ignored until now In the past several years a spate of lower federal court nominations and two Supreme Court nominations the successful nomination of Chief Justice John Roberts and the abortive nomination of Harriet Miers have occasioned public debate over whether the Religious Test Clause forbids Presidents andor Senators from supporting opposing or even questioning nominees on the basis of religion More broadly these events have been the occasion for discussions about whether and how religion may be raised in the public debate surrounding judicial nominees Because the Roberts and Miers nominations present neat mirror images of each other with religion used as a disqualification in one nomination and a qualification in the other it is an opportune moment to assess what the Religious Test Clause has to say about these cases and about the use of religion in the federal judicial nomination process more generally This article a contribution to a Symposium on Religion Division and the Constitution is the first to fully examine these questions After discussing the invocation of the Religious Test Clause in the recent nomination controversies it looks carefully at the text and history of the Religious Test Clause It argues that the Religious Test Clause precludes Congress or the President from imposing a formal test oath on wouldbe federal officeholders that would require them to avow or disavow under oath allegiance to a particular faith or set of religious doctrines And that is all it does A President may select nominees on the basis of their faith if he chooses a Senator may question a nominee on his or her faith or religiously derived beliefs or support or oppose a nominee on that basis Thus those public officials public figures and commentators who argued during the recent nomination process that the Religious Test Clause barred certain actions or inquiries were wrongI argue that this conclusion is not only descriptively accurate it is also normatively sound There are many plausible reasons why a President or Senator might validly inquire into the faith or religiously derived beliefs of a nominee To silence such inquiries because of the dangers of intermixing religion and politics ultimately disserves the broader principle that religion ought to be a fully welcome part of discussion in the public sphere In addition the broad reading of the Religious Test Clause by constitutionalizing an area of politics unduly limits the scope of popular responsibility for the political process The best remedy for abuses of religion in the judicial nomination process lies in the realm of ordinary politics and not in the ConstitutionAlthough the Constitution thus provides few if any barriers to the use and abuse of religion and religious rhetoric in the federal judicial nomination process nothing prevents us from attempting to craft evaluative criteria that might lead to more fruitful uses of religion in public debate and to guide our understanding of how well or poorly religion has been used in the public debate surrounding judicial nominations The article thus offers several principles of constitutional etiquette that might guide our understanding of the sound use of religion in this context and measures the recent nomination controversies against these standards It concludes that even with these criteria in place the invocation of religion in judicial nominations as elsewhere may lead to more rather than less division in our national politics But the price is well worth paying if our public discussions become richer and deeper as a result

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