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The Religious Test Clause:

I'm delighted to say that Prof. Paul Horwitz, from Southwestern Law School will be blogging next week about his new article, Religious Tests in the Mirror: The Constitutional Law and Constitutional Etiquette of Religion in Judicial Nominations, 15 Wm. & Mary Bill Rts. J. 75 (2006). I read the article and found it to be interesting and important, and thought I'd invite Prof. Horwitz here to discuss it. Here is the abstract, for those who want to get a sense of what the posts will mostly be about:

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 and/or 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 would-be federal office-holders 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 wrong.

I 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 Constitution.

Although 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.

Andrew Okun:
This may be a correct interpretation of that language, but I don't think so and even if it is, I don't find it a heartening thing. It pretty much renders the clause meaningless.

I can see the argument that barring discussion of a prospective public official's religion at any point in the process constitutes a constriction of open public debate, which certainly should include discussion of values. I can also imagine arguments that the framers had some particularly abuse in mind when they put that language in.

But if it only applies to formal oaths, then why the word "test" rather than "oath," a term already well understood and a matter of controversy? And why include at all a prohibition on certain ceremonies in the Constitution?

It seems to me the framers would have had to have one of two things in mind... either (a) federal jobs be open to Catholics, Quakers, Jews and the like and the no test clause was meant to ensure that or (b) they could be kept out of public jobs based on their religion, but, once chosen, the people who did meet the informal tests of merit, including profession of faith, would not have to go through the further indignity of an oath. (b) just doesn't seem like the framers to me. These were men reacting to a history replete with religious persecution in Europe, where rulers seeking to change the religious affiliations of their population would use their influence over public jobs as one of many tools to ostracize and harass those who refused conversion. They seem to me like men much more prone write a clause to prevent actual abuse rather than ceremonial impropriety.

Horwitz' interpretation would mean there is no bar at all to open and wanton religious discrimination in granting public jobs. If a theocratically minded person takes the presidency and gets a Congress that's sympathetic, they could simply announce that federal posts are only open to active and sincere Christians of the right sort, the US being a Christian nation. Come to it, a Jain or Zoroastrian sweep of power could prompt a similar announcement. Convert or don't expect a job.

The remedy for this excess, according to Horwitz, is in the political realm. Theocrats don't tend to win and can be beaten; a free polity doesn't like them. Fight them on the field of ideas. If so, why bother to have a no religious test clause?
3.23.2007 8:35pm
Reg (mail):

It argues that the Religious Test Clause precludes Congress or the President from imposing a formal test oath on would-be federal office-holders 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.


I think the clause was ignored because this is obvious. The section states:


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.


In that context, occurring right after the requireemnt that all executive, judicial, and legislators in all state and federal offices must swear an oath to support the Constitution, the religious test prohibition just ensures in crafting the oath, no religious test is to be added to such oath for federal offices. I wonder what else there is to say about it.
3.23.2007 9:32pm
frankcross (mail):
Andrew Okun, there's a middle ground. The "test" language makes it clear that religion cannot be an absolute requirement or absolute bar. However, it does not follow from that religion may not be considered as a factor in the decision, in tandem with other criteria. Indeed, I'm about 99.99% sure that it has been considered as a factor in numerous cases. I thought that was the point of the argument.
3.23.2007 9:58pm
Jon Rowe (mail) (www):
From the article:


In sum, only one state -- Virginia, whose Statute for
Establishing Religious Freedom, penned by Thomas
Jefferson, made clear that the "civil capacities" of citizens should not be affected by "their opinion in matters of religion"193 -- clearly permitted citizens of any faith to hold public office at the time of the ratification of the Constitution.194


If Mr. Horwitz is reading this comment thread, what, may I ask was Rhode Island's religious test during the Founding era?
3.23.2007 10:01pm
Jon Rowe (mail) (www):
I read the article; I liked it. Though my biggest point of disagreement is on the history of state religious tests. Stating that because they were so numerous that the Framers and Ratifiers were entirely comfortable with religious tests at the state level is like stating the Framers and ratifiers were entirely comfortable with slavery. Much can be offered that shows the key Founders hated all religious tests no matter where they came from (indeed, many quotations can be offered to show that even slaveholding Founders like Jefferson hated slavery, something else states were permitted to retain under our original constitutional order). And don't forget by outlawing religious tests at the federal level, they forbade something -- by doing which showed they were uncomfortable with such -- even if they permitted such to exist at the state level.

The ratifiers at the state level were probably more comfortable with religious tests than the framers of the Constitution and signed on to the Constitution knowing that 1) they could still impose religious tests at the state level, and 2) even though they couldn't impose religious tests for public office federally, they could still figure out the religion of the persons running for office and vote only for those with the right religion.

What's fascinating, though, by forbidding a religious test for Christianity at the federal level, this helped to ensure that the "infidels" who wrote the Declaration and Constitution could be elected President. Though Washington, Adams, Jefferson and Madison were all devout theists -- according to the orthodox Christians -- those who feared "Jews, Turks and Pagans" could be elected if religious tests were abolished -- arguably all 4 qualified as "infidels" because they rejected the tenets of orthodox Christianity, like the Trinity, Incarnation, Atonement and Plenary Inspiration of Scripture. To orthodox Christians, those Founders rejected the Christian religion itself which many associate with those very doctrines of orthodoxy the key Founders rejected in their personal views. Jefferson, Adams, Madison and Franklin couldn't pass most religious tests at the state level that existed during the Founding era. I doubt Washington could either; but because of his reticence to discuss his personal creed there is always some uncertainty with him. That Jefferson, Madison, and Washington were all associated with a Church that professed orthodoxy (Anglican/Espiscopal) certainly helped their case. But even with Jefferson whose infidelity, out of the first four Presidents', was probably most widely known. But that still didn't stop him from being elected. Though I'm not sure if Jefferson's Federalist Clergy enemies were aware that Adams was as much of an "infidel" as Jefferson.
3.23.2007 10:58pm
Clayton E. Cramer (mail) (www):
A more complete explanation of why religious tests were prohibited at the federal level, not the state level, is that in most states, there was a pretty clear majority on one side. Congregationalists in Massachusetts, for example. In the Carolinas, the requirement that one be a Protestant to hold most public offices reflected the overwhelming Protestant majority there.

In some cases, the constitutional provisions do not require one to be of a particular office, but prohibit any statute that discriminates against members of a particular religion. In New Jersey, it was Protestants that were guaranteed that their religion would not be held against them; others did not enjoy this protection.
3.23.2007 11:34pm
Mark Field (mail):
I fail to see the difference in principle between (1) Congress passing a law requiring candidates to state, under oath, that they are loyal to the country rather than the Pope; and (2) members of the Senate asking each candidate to express that same sentiment prior to giving "advice and consent". The test clause should preclude both, as well as more subtle efforts to circumvent it. The government simply has no business inquiring into religious opinion.
3.23.2007 11:46pm
Jon Rowe (mail) (www):
A more complete explanation of why religious tests were prohibited at the federal level, not the state level, is that in most states, there was a pretty clear majority on one side.


Or it could be that the Framers of the Constitution were generally against religious tests but only had the power to outlaw them at the federal level. Plenty of quotations show that they were extremely uncomfortable with such tests at all levels but knew they couldn't get the states to ratify the Constitution if they tried to abolish all of them.
3.24.2007 12:15am
marghlar:
Or it could be that the Framers of the Constitution were generally against religious tests but only had the power to outlaw them at the federal level. Plenty of quotations show that they were extremely uncomfortable with such tests at all levels but knew they couldn't get the states to ratify the Constitution if they tried to abolish all of them.

And here we see the problem with working from framer's intent: although Madison and Jefferson definitely held strong views on this issue, it is far from clear that most of their contemporaries felt the same way. Most constitutional provisions represent compromises, and it is likely that different people viewed the same language as having different effects.
3.24.2007 12:23am
JosephSlater (mail):
Interesting stuff, but is it as impressive as Prof. Horwitz's recent success on "Jeopardy"?
3.24.2007 12:40am
Harry Eagar (mail):
The meaning probably should be sought in the circumstances of 1787. I have always considered those 9 words the most revolutionary in the Constitution.

In only a few places could the question even be imagined in 1787. That it was considered and was thought to be a bad idea ought to tell us what was up.

More specifically, what Mark said.
3.24.2007 1:01am
Jon Rowe (mail) (www):
It wasn't just Madison and Jefferson, it was also Franklin, Adams, Carroll, Rush, and others. Honestly I'd like to see evidence that any of the folks who framed the federal Constitution (I'm sure there were some) supported state religious test oaths that forbade folks of the "wrong" religion from holding office. Like I said, though many ratifers at the state level supported oaths in their state. The compromise was they were allowed to retain them.
3.24.2007 1:06am
Brian K (mail):
Excellent point marghlar. That's the problem i have with using framer's intent as a reasoning for judicial decisions. It is too often used to give legitimacy to what would otherwise be just another person's opinion. (i.e. make a person opinion appear as an objective fact). It is not hard to find someone who drafted, signed or voted for the constitution that holds the same viewpoint that you do.
3.24.2007 1:16am
Jon Rowe (mail) (www):
Brian K:

I agree. The original meaning of the text, not "original intent" controls. The original meaning of Art. VI says nothing about whether the Constitution's Framers were comfortable with state religious tests, just that such tests were abolished federally.
3.24.2007 1:24am
Porkchop (mail):
"Test" in this clause has a historical meaning that is missing in this discussion. It comes from the British "Test Acts," which not only disabled all but members of the Church of England from holding office, but also imposed "tests" to prove that membership. One had to swear an oath of one's belief and adherence to the doctrines of the Church of England (specifically, a non-belief in transubstantion during Holy Communion) pursuant to the Test Act of 1672, and later, after 1678, to denounce certain Catholic doctrines and practices as "superstitious and idolatrous." In addition, one had to receive the sacrament in the Church of England within three months of entering office. While it may seem trivial to some of us today, it could be a matter of life and death at the time. From the end of the reign of Henry VIII until the death of Elizabeth I, there were many martyrs on both sides of that debate. Elizabeth's sister, "Bloody Mary" (Mary I) was an ardent Catholic who brooked no dissent. In addition, there was a general view in Europe at the time that the religious affiliation of the monarch was the religious affiliation of the country. That was a considerable factor in the length and brutality of the Hundred Years War.

Fairly read, I think that the Test Clause prohibits only the requirement that one affirmatively declare belief or membership in a specific religious doctrine or body, respectively, in order to hold office. This would have been particularly important to Maryland, which was founded as a Catholic colony by Lord Baltimore to protect the sect most often targeted by the such laws (which were written to protect Protestantism upon the ascendancy of the Stuart kings) and Rhode Island, which had been established as a safe haven for religious dissenters of all kinds (specifically including Jews, which was for the time, fairly remarkable). The new country could have done without Rhode Island, but if Maryland had not ratified the Constitution, the new United States would have been cut in two. Certainly, in the New England colonies, the tradition of intolerance brought by the Puritans was still strong, although not as strong as it had been in the 17th century. I don't know whether there were religious tests for office in New England, but it had not been very long since religious dissent had been punished severely.

I don't know if there was specific discussion of these issues, but they would have been obvious background to the framers. Incidentally, the Test Acts were repealed in 1829 in England (presumably in Scotland as well, but I don't know whether or how they applied there before the Act of Union, and, as everyone knows, Scottish law is unfathomable for everyone except the Scots), so one could see the Test Clause as sort of a cutting edge change in approach to these issues in Anglo-American law.
3.24.2007 10:13am
Clayton E. Cramer (mail) (www):
Jon Rowe writes:

Or it could be that the Framers of the Constitution were generally against religious tests but only had the power to outlaw them at the federal level.
The Constitution prohibits other things at the state level. See Art. I, Sec. 10:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
Art IV contains several impositions on the states as well, including full faith and credit; extradition for criminals and the delicately phrased "held to Service or Labour"; a republican form of government in each state.

If there were no other impositions on the states contained in the Constitution, your argument would have some power to it. But clearly, the drafters of the Constitution were not afraid to limit state power if they had a good reason.

I agree that there were prominent Framers who regarded religious tests as a bad idea. But if this view had been widely held, there would not be so many state constitutions with religious tests written into them.
3.24.2007 10:47am
Clayton E. Cramer (mail) (www):
Porkchop writes:

The new country could have done without Rhode Island,
And we almost did. Rhode Island delayed ratification so long that the First Congress was already meeting, and discussing whether to establish border fortifications and customs houses along the Rhode Island border.

One of the reasons that the Constitution has the abhorrent provisions concerning slavery (although never directly called that) was because South Carolina and Georgia had made threats at the Philadelphia Convention that they would join unless they had some guarantees in this area.

Rhode Island, the state with the longest history of religious tolerance (in the strict sense of the word--no laws against religious dissenters) was already regarded as a likely non-ratifier.
3.24.2007 10:50am
Porkchop (mail):

Rhode Island, the state with the longest history of religious tolerance (in the strict sense of the word--no laws against religious dissenters) was already regarded as a likely non-ratifier.


It also was the first colony to ban slavery -- in 1652. Presumably, that didn't make the South Carolina and Georgia particularly comfortable, either.
3.24.2007 10:54am
Jon Rowe (mail) (www):
I may be wrong; I'm trying to confirm the historical record, I also think that Rhode Island long before the VA Statute on Religious Freedom, had no religious test for public office. I know that Roger Williams made in principle arguments that Pagans were just as qualified for public office as Christians.
3.24.2007 11:10am
Jon Rowe (mail) (www):
Many religious conservatives, contra the Smith decision written by Justice Scalia, desire a broad reading of the Free Exercise Clause. It seems as though with Art. VI as well, both broad and narrow readings of it can cut both ways politically.

When first reading the article, a narrow reading of Art. VI struck me as a conservative reading. But going back to the recent nomination battle over Roberts and Alito, it seems that many conservatives argue for the very opposite reading for which that Horwitz argues. See for instance this article by Manuel Miranda:


In Monday's Boston Globe, columnist Cathy Young, also a contributing editor of the libertarian Reason magazine, concludes: "A candidate's or nominee's ideology should be fair game whether it's religious or secular in nature, whether it's rooted in conservative Catholicism or liberal feminism."

More interesting is how Ms. Young gets to this conclusion. While applauding John F. Kennedy's milestone election as the first Catholic president, Ms. Young recites Article VI, but she conflates the religious test clause with the provision that officeholders "shall be bound by oath or affirmation, to support this Constitution." She interprets this to mean that "an officeholder could not be required to take an oath or perform a religious ritual affirming his allegiance to a particular religion or denomination, or even a general belief in God."

[...]

In Wednesday's Washington Post ("Why It's Right to Ask About Roberts's Faith"), columnist E.J. Dionne asks: "Is it wrong to question Judge John Roberts on how his Catholic faith might affect his decisions as a Supreme Court justice? Or is it wrong not to? . . . Why is it wrong to ask him to share his reflections with the public?" It would be helpful, Mr. Dionne concludes, "if Roberts gave an account of how (and whether) his religious convictions would affect his decisions as a justice."

[...]

Journalists believe that the religious test clause guards against simple discrimination against Catholics or Jews or any other particular denominations. It does not. It prohibits a probe of what the potential officeholder believes derived of his religious convictions. [my emphasis] It is not about what he lists on a questionnaire under religion, as if it were like race or sex. That is why the liberal press has mocked the concern raised by conservatives that the abortion litmus test and other lines of inquiry are a constitutionally prohibited religious test.


As I read Prof. Horwitz's article, Young and Dionne — those "journalists" — are the ones who properly understand Article VI. It really does mean only that "an officeholder could not be required to take an oath or perform a religious ritual affirming his allegiance to a particular religion or denomination, or even a general belief in God." And if a liberal Congress wants to probe into Justice Roberts' religious beliefs and vote him down because he, as a conservative Catholic, may be so influenced on the Court, Art. VI provides no constitutional barrier to their so doing.
3.24.2007 11:32am
JimB (mail):
I find the entire matter amusing. After the bloodbath that occurred in the nomination of Judge Bork I thought that the intent of the drafters OR of the text no longer determines Constitutional Law. JimB
3.24.2007 11:47am
Mark Field (mail):

I don't know whether there were religious tests for office in New England


They did. Here's the text of the Vermont clause:

"I do believe in one God, the Creator and Governor of the universe, the rewarder of the good and punisher of the wicked. And I do acknowledge the scriptures of the old and new testament to be given by divine inspiration, and own and profess the protestant religion."

Similarly, Delaware's required the following:

"I, A B, do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration."

MA also had one, but of course it still had an established church. I'm sure other states did also.
3.24.2007 12:01pm
CJColucci:
I never cease to be amazed at how big legal-academic reputations can be built on restating the obvious.
3.24.2007 12:44pm
Byomtov (mail):
frankcross,

The "test" language makes it clear that religion cannot be an absolute requirement or absolute bar. However, it does not follow from that religion may not be considered as a factor in the decision, in tandem with other criteria. Indeed, I'm about 99.99% sure that it has been considered as a factor in numerous cases. I thought that was the point of the argument.

I've never really understood this sort of argument. If religion can be considered as a factor, then there must be some cases where it is the decisive factor, otherwise it's not really being considered at all. So this says it's OK to choose A over B based on religion sometimes, but not always? Sure, you could claim it's a coin toss otherwise, but it almost never really is, and if it is, why not just toss a coin?
3.24.2007 4:50pm
Rich Rostrom (mail):
Horwitz has it exactly right: the clause prohibits any religious discrimination from being written into law as a requirement for Federal office. It does not prohibit the President, or other Federal appointer, from considering religion at his discretion in making appointments, nor Senators from considering religion at their discretion in approving appointments.

How could it? If the appointer, or Senator, never explicitly gives religion as the reason, he is free to exclude all members of a religion. Short of mind-reading, who can object?

If the appointer or Senator has complete discretion to appoint or approve at will, then his reasons are his own (barring outright corruption) whether explicit or concealed. If the appointer or Senator applies bad reasons, the remedy is for the voters to replace him.
3.24.2007 8:50pm
Mark Field (mail):

If the appointer, or Senator, never explicitly gives religion as the reason, he is free to exclude all members of a religion. Short of mind-reading, who can object?

If the appointer or Senator has complete discretion to appoint or approve at will, then his reasons are his own (barring outright corruption) whether explicit or concealed. If the appointer or Senator applies bad reasons, the remedy is for the voters to replace him.


Your last sentence completely undercuts your first two. How can the voters replace someone who conceals his bigotry?
3.24.2007 10:25pm
ReaderY:
It should be noted that the Religious Test for Public Office clause is a separate right and is incorporated by the 14th Amendment independently of the Establishment Clause.

My general view is that while Courts shouldn't read their own views into the Constitution, they can and should read specific innumerated textual rights somewhat liberally in favor of the individual rights involved.
3.24.2007 11:58pm
Andrew Okun:
I have learned a lot from this discussion. I realize that what I want is for this clause to bar the kind of religious discrimination I don't like (no atheists to be appointed; Catholics to be questioned about their loyalty) and to allow the religious discrimination I do like (no end-times believers in charge of nukes; Ashcroft to be grilled about bringing his religion to work.) There is no clean answer. I am sure it was not put in there lightly, but am convinced by the historical account above of the meaning of the word "test." Perhaps we should look on this as the framers setting a small concrete standard to be met and a large value to be aspired to.
3.25.2007 4:35am
Harry Eagar (mail):
'Perhaps we should look on this as the framers setting a small concrete standard to be met and a large value to be aspired to.'

Yes, my view but expressed better than I could do it.

If we accept Sydnor's contention that the US Constitution was a conservative document, building on and protecting the concepts that the colonists had become accustomed to in their local constitutions, then the mere fact that the Framers wrote out tests when almost all (11 of 13, according to previous posters) colonial constitutions had them must indicate a strong animus against dragging religion into politics.

The startling lack of any reference to religion anywhere else tends to reinforce the conclusion.
3.25.2007 3:18pm
hopi (mail):
Back to basics. This is the religion clause of the first amendment.


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;


Andrew Okun doesn't like John Ashcroft bringing his religion to work (His exact words: " . . . Ashcroft to be grilled about bringing his religion to work".) The first amendment clearly gives Ashcroft the right to hold his daily voluntary bible study meetings. No way around it.

It's also good to know what an establishment of religion meant back at that time. It meant that anyone back then who wanted a job of any sorts with the British government (including being in the civil service and even in the military at any level) had to swear an oath agreeing to thirty some-odd (37 I think, but it may have been 39) points of Church of England doctrine. These thirty some-odd points were very specific, and they distinctly separated the Church of England from on one side Catholics and on the other side Puritans.

That's what a religious test was back then, not in abstract theory but in concrete fact.

Well, of course, no body wants anything like that going on in this country. But twisting that establishment clause into barring religious expression is a bad joke.
3.25.2007 7:49pm
BruceM (mail) (www):
It is important to find out if a candidate (especially one nominated to be a federal judge) will treat the Constitution and laws of the United States as secondary to the Bible (or whatever religious text he subscribes to).

Someone cannot take the oath to uphold the Constitution and laws of the US if he will put the Bible first. Such a person is disqualified as a matter of law from holding any position which requires such an oath or affirmation. This is not a religious test. The constitution does not require people who cannot enforce it to enforce it -- that's ridiculous. A religious test is requiring one to be a christian or jew or believe in a supreme being as a prerequisite to qualificiation.

It is not a religious test to say someone is disqualified because their religious beliefs require them to put other rules before the constitution and laws of the US when there's a conflict. People like John Ashcroft, who repeatedly say the Bible is the ultimate law of the land, should be (and are, as far as I'm concerned) absolutely disqualified from holding any public office. You are free to be as religious as you want, but there comes a point where your religiosity bars you from public service because you readily admit you will not and can not uphold the constitution. It really pisses me off when religious people say a federal judge can rightfully put the Bible before the Constitution because the No Religious Tests clause permits it. Total BS. Such a person needs to be prosecuted for perjury assuming he took the oath to uphold the constitution and then says the Bible comes before it.
3.25.2007 8:17pm
Mark Field (mail):

It's also good to know what an establishment of religion meant back at that time. It meant that anyone back then who wanted a job of any sorts with the British government (including being in the civil service and even in the military at any level) had to swear an oath agreeing to thirty some-odd (37 I think, but it may have been 39) points of Church of England doctrine. These thirty some-odd points were very specific, and they distinctly separated the Church of England from on one side Catholics and on the other side Puritans.

That's what a religious test was back then, not in abstract theory but in concrete fact.

Well, of course, no body wants anything like that going on in this country. But twisting that establishment clause into barring religious expression is a bad joke.


I think you're mixing the establishment clause with the religious test clause, and then mixing the free exercise clause -- an individual right -- with what government officials can do in their public capacity. Each serves a slightly different purpose.
3.25.2007 10:09pm
hopi (mail):


I think you're mixing the establishment clause with the religious test clause, and then mixing the free exercise clause -- an individual right -- with what government officials can do in their public capacity. Each serves a slightly different purpose.


That's not quite the way I look at it. I more look at it like they are three different aspects of the same, deeper principle -- mainly that we don't want a tyrannical national religion that forces people to be a part of it or that keeps people from expressing their own religion that is contrary to it.
3.26.2007 12:05am
Andrew Okun:

Andrew Okun doesn't like John Ashcroft bringing his religion to work (His exact words: " . . . Ashcroft to be grilled about bringing his religion to work".) The first amendment clearly gives Ashcroft the right to hold his daily voluntary bible study meetings.


I phrased it ill then, because I wasn't referring to the daily bible meetings, which I'd forgotten about, but more generally to the danger of a public official believing specific religious principles are a source of law. Given Ashcroft's statements before taking the office, I meant I'd want someone like him to be asked about that during his hearings.

And I was talking about the test clause, not the establishment clause, and certainly not free exercise. Free exercise shouldn't be and isn't in any danger in this country.
3.26.2007 12:22am
Mark Field (mail):

I more look at it like they are three different aspects of the same, deeper principle -- mainly that we don't want a tyrannical national religion that forces people to be a part of it or that keeps people from expressing their own religion that is contrary to it.


I'd agree that they all work together to establish a principle, but to me the principle is that government has no business involving itself in religion in any way.
3.26.2007 12:55pm