[Paul Horwitz (guest-blogging), March 27, 2007 at 10:38am] Trackbacks
What's Right About the "Deep but Narrow" Religious Test Clause:

Yesterday I laid out a more or less historically based argument about the relatively small scope of the Religious Test Clause. "Narrow" to modern eyes, anyway; I don't think the generation that framed it would have described it that way. Some of the comments have naturally asked, what is my normative view of this conclusion? So, unlike yesterday, let me cut to the chase. I think the reading I have offered is also normatively sound and even attractive, notwithstanding — indeed, in some ways because of rather than in spite of — the parade of horribles I offered at the end of yesterday's post. That normative conclusion is important to me because, although I think history is an important interpretive tool and constraining force in constitutional interpretation, I don't think it is absolutely determinative.

I think the narrow approach I counseled is sound for a number of reasons, which should be attractive to readers from a fairly wide cross-section of constitutional and/or political views. First, it resists the urge to overinterpret the Constitution to solve every "problem." A broad reading of the Clause, by constitutionalizing a vast swath of conduct with respect to judicial and other nominations, narrows the realm of political accountability for such conduct rather than place the enforcement power where it should mostly rest — in the hands of citizens. Indeed, to me one of the peculiarities of the broad reading of the Test Clause taken by many commentators during the Roberts/Miers nominations was that it seemed to run contrary to their general inclination not to expand the meaning of (some) other constitutional provisions beyond their historical scope.

This approach is also sound because, as some commentators have recognized and as Eugene wrote here some time ago, of course religion may be relevant to a nominee's fitness for public office. As the framers and ratifiers recognized, and as Eugene wrote somewhat more recently, "beliefs on contested moral issues are an important and necessary part of the President's decisions about whom to appoint." To take Eugene's example, the President may quite reasonably refuse to appoint as Attorney General someone whose religious beliefs cause him or her generally to oppose the death penalty.

Eugene's example is based on the ways in which religious belief can affect public conduct, and this supports another point made in my article and elsewhere: that the line between religious beliefs and religiously derived beliefs that are highly relevant to a nominee's fitness for office is sufficently blurred that we should resist a reading of the Test Clause that ignores the distinction. But the framers believed more generally that personal character (of which religion was one important aspect) was relevant to public office. I think they were right, and so I think the point can be extended beyond the easy cases. To take a somewhat unlikely example, imagine that the President nominates a Satanist to judicial office, and that this individual's beliefs take the form of advocating and working toward the triumph of evil over good in the universe. OK, not a great pick politically speaking, although we may be missing an untapped constituency. Now, surely the nominee could not be required to formally renounce Satan and all his works as a condition of entry into office. But is it really the case that a Senator could not validly be concerned that such a worldview is inconsistent with judicial office? If the nominee protested that his religious beliefs would not intersect with his judicial office, could a Senator not similarly be concerned that anyone who believes in working for the triumph of evil over good should not be taken at his word? Could not the fact of the nominee's Satanism be an inherent bar for some Senators faced with a decision whether to confirm? Despite the obvious risks attendant upon such an approach — after all, the likely victims of such a vote are unlikely to be Satanists — I think it is still a far sounder and more attractive reading of the Religious Test Clause than one that treats any such concerns as irrelevant and/or forbidden entirely.

Finally, I think my narrow reading is sound because it honors a broader principle: that religious beliefs should not generally be disqualified from full inclusion in any aspect of public discussion and deliberation. The Establishment Clause, at least in my view, disables government from doing certain things respecting religion, but it does not secularize public deliberation, and it should not. As Martha Minow has written, "religiously inflected arguments and perspectives bring critical and prophetic insight and energy to politics and public affairs." We should be loath to exclude those benefits to our public polity, just as we should be loath to forbid individuals, citizens and lawmakers alike, who wish to speak in a distinctly religious voice within that polity. Many who agree with this general principle tend, I think, to treat it as rather a one-way ratchet: treat religion well in the public square, but anything that exposes religious individuals to risks in public deliberation should be verboten. But I think the narrow reading of the Religious Test Clause actually best honors this principle, by saying that religion is potentially as relevant and important a factor in considering nominees as other factors might be, and equally entitled to be a subject of discussion.

Three final notes for today. First, all of the above is still subject to the fundamental rule of the Religious Test Clause: even the Satanist cannot be made to swear to or renounce particular religious beliefs as a condition of entry into a federal office. Senators and Presidents may or may not consider religion when making individual decisions about fitness for office, but no one can be oath-bound to adopt or renounce a religious faith or tenet. Second, although I wrote that such considerations may be relevant and are not constitutionally forbidden, I also emphasize that such votes or inquiries may also be politically costly — as the President discovered, at least, during the Miers nomination, although I resist the way in which his critics treated his conduct as a constitutional violation. That example suggests that politics can, in fact, be an important constraint on the misuse of religion in the nomination context, although surely it is an imperfect one.

Finally, just because I think the Constitution doesn't ultimately say much to foreclose the kind of rhetoric we saw at work during the nominations of Pryor, Roberts, Miers, and others, that doesn't mean we can't have a useful discussion, derived from "constitutional values" and our broader values as a nation, about what sorts of standards ought to govern the use of religion in this and other public debates. Call it a sort of "constitutional etiquette," to use the term I advance in my article. I'll write about that tomorrow. In the meantime, aside from the usual (and valuable!) "you're crazy" or "you're obviously right, hence uninteresting" comments, I hope some commenters will offer their own take on what sorts of rules or values should govern when citizens and lawmakers invoke religion in public debate, around nominees or other issues.