Being a lawyer and a political enthusiast, I have been following the discussion regarding President Bush's appointment of Harriet Meiers to the Supreme Court with great interest. Because so little is known about Ms. Meiers, some conservatives have taken solace in the fact that she apparently is an evangelical Christian. James Dobson and Jay Sekulow, among other prominent evangelicals, have come out in support of her nomination despite her lack of a paper trail suggesting that she would be sympathetic to their causes.
A liberal columnist, E.J. Dionnne, has taken offense at this because he believes it may violate Article VI, Clause 3, of the United States Constitution:
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.
Dionne believes evangelicals are being hypocritical because some of them took offense when Senator Durbin wanted to interrogate Judge (now Chief Justice) Roberts about how his faith might impact his decisions.
A conservative blogger at Powerline Blog has responded to Dionne and believes Dionne has misconstrued the religious test bar in the Constitution. Here is how Paul Mirengoff understands the clause:
As I understand this provision, it protects Miers and other nominees from having to disclose their beliefs about religion. It also prohibits Senators from basing their votes on a nominee's beliefs. It would offend the Constitution if, for example, Senator Schumer voted against William Pryor out of fear that his deeply held Catholic views would cause him to violate his oath to uphold the Constitution. The same would be true if a Senator voted against a nominee because she is an atheist. But I'm hard-pressed to see a problem with private citizens using such bits of information to try to form a sense of a nominee.
I agree with Mr. Mirengoff that the clause does not apply to private citizens voicing their preferences, but I think even his more limited interpretation is problematic. When we look at the clause itself, it seems to suggest that no potential officer of the United States shall be required to affirm their disposition towards one faith or the other or to no faith at all by oath. The first part of Clause 3 requires that all officers of the federal and state governments take an oath to uphold the constitution, but then notes, "but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
The history of the Constitutional Convention seems to support this understanding. This part of the clause was first submitted by Mr. Pinkney in this form: "No religious test or qualification shall ever be annexed to any oath of office under the authority of the U.S." The proposal was moved to the full convention and adopted a few days later as revised by Mr. Pinkney in its present form. See Bicentennial Edition, Notes of the Debates in the Federal Convention of 1787, Reported by James Madison, Norton paperback 1987, original introduction copyright 1966, Ohio Univ. Press, pages 486, 561.
I do agree that, as adopted, Clause 3 would prohibit an official requirement that any occupant of any office in the federal government be of a certain faith (whether or not a particular oath was required).
But does it go farther? Would it, for example, prevent Senator Durbin from deciding to vote against a certain nominee who was a devout member of an evangelical church that believed abortion was murder? While such a position held by a senator would be outrageous and rightly criticized, I am not sure that it is barred by Clause 3 of Article VI. If it did apply to such cicrumstances, then it would likely also apply to the President's nomination of particular nominees. It has long been recognized, however, that there is a "Catholic" seat and a "Jewish" seat on the Supreme Court. There is no official requirement of such, but Presidents in exercising their discretion in whom to appoint to the Supreme Court have on occasion taken into account the nominee's faith.
What is more worrisome is how such a principle might apply to elections. Religion more and more is becoming a significant indicator of political preference. It is too simple to say that atheist vote for liberals and evangelicals vote for conservatives, but the numbers show that atheism and evaneligalism is a strong indicator of these choices. And while this is different than voting only for a nonminee of a particular faith, is there any question that Bush's expressed evangelical beliefs helped him secure the Republican nomination? Or, if an atheist were to run for the presidency, is there any question that Christians, Jews and Muslims would shy away from voting for him?
If a Senator cannot exercise his or her discretion to vote for a nominee based on that nominee's religous faith, and a President cannot do so, how then can private citizens make their decisions to fill those offices based on the religion of the candidates?
Enforcment of such an extensive interpretation of the religious test ban would be problematic. How do we know why Presidents and Senators do what they do? Would we have to interrogate them under oath? And would courts then be deciding who voted for whom and why? And what would be the remedy? Would courts be telling the President to withdraw nominations or Senators that they had to vote yes on particular nominations? If it applies to elections then we would be in the position of having judges invalidating public elections! This is all quite messy, undesirable, and would likely be avoided by the courts because they would fall under the Political Question Doctrine.
Once we move beyond whether there exists an official religious test for candidates and nominees for federal office, what application does Clause 3 of Article VI have to the choices of elected officials and voters? I have not made up my mind though I fear how far such a path might lead and doubt it would be enforceable due to the Political Question Doctrine. I am very interested in the opinion of others on this issue. I also intend to do some more of my own research.