[Paul Horwitz (guest-blogging), March 29, 2007 at 10:11am] Trackbacks
Response to Commenters on the Religious Test Clause:

Thanks again for the comments on my discussion of my piece on the Religious Test Clause. Let me offer some responses, divided broadly into comments about history and comments about my broader normative argument in favor of a narrow but deep reading of the Religious Test Clause.

History: First, Jon Rowe, who had many valuable comments, asks a basic question: What was Rhode Island's religious test during the Founding era? Let me quote from Gerard Bradley, whose article I cited in my first post: "Rhode Island, as in many church-state matters, was a special case: the Protestant monopoly there flowed from an exclusion of Catholics and Jews from citizenship, and not, precisely, from political office." Mr. Rowe also makes a series of broader points, arguing that we should draw some significance for our historical reading from the assertion that a number of key framers were not orthodox Christians. I don't dispute that assertion, but would say two things. First, those admittedly central individuals are not the only or even the authoritative figures here. In thinking about the historical understanding of the Clause, their views must be counted alongside the views of those whom they sought to convince — the other framers and the ratifiers of the Constitution. I have no algorithm to apply here in weighting their respective views; but my holistic reading of the history surrounding the debate over the Clause suggests to me, at least, that we should not read the Clause too broadly in light of these standout examples, especially in light of the real historical evils the Clause appeared fairly clearly to address. Second, as Mr. Rowe notes, although unorthodox, those key framers, and certainly many other framers, did not think virtue and character were irrelevant to political office; for most framers and ratifiers, religion (however broadly defined) was certainly a vital aspect of one's character. Finally, another commenter asks why the framers didn't use the word "oath" rather than "test." This is a fair question, but I will answer with the words of another commenter: "Porkchop," who points out that the word "test" did have a fairly clear meaning taken in historical context, and that most religious tests were in fact oath-centered, or otherwise closely related to the imposition of formal requirements of religious belief or conduct for putative office-holders. It is no answer to say, Justice Black-like, "'no test'" means 'no test,'" unless we understand something about the language used, taken in context.

Normative arguments: I got a number of interesting comments on this broader subject. A variety of commenters offered some variation on the view that my reading of the Clause leaves too much that is threatening and worrisome up for grabs: it "would mean there is no bar at all to open and wanton religious discrimination in granting public jobs [more precisely, public offices or trusts]." Another (Mark Field) writes that there is no principled difference between a formal religious test and an individual senator "asking each candidate to express that same sentiment [contained in the formal test] 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." Another commenter writes that character can always be a factor in a decision to nominate or affirm, but that "the Founding Fathers were pretty clear on the concept: No religious test, period." In short, a number of commenters think the Clause itself, or broader values we find in the Clause, preclude "government" from considering religion. Remember Prof. Tribe, suggesting that the Clause effectively secularizes the public order.

My general response is to suggest that the Religious Test Clause is revolutionary enough if understood on its own terms, and that the kind of larger "value" it is said to represent, one in which public decisions and debates (including decisions made and positions taken by office-holders) are largely stripped of religious terms, runs beyond what I understand our constitutional "values" to hold with respect to the role of religion in public debate and action. I agree that "government" is officially barred from taking particular official steps in particular areas, including a prohibition against formally erecting religious barriers to office. But I think there is a substantial difference between those formal tests and the possibility of religion playing a "more subtle" role in nominations and confirmations. To disable government from erecting religious barriers to public office is one thing; to say that religion must be presumptively and absolutely irrelevant to considerations of public office, I think, goes too far. Religion may be relevant in the way that a number of commenters were willing to recognize: indirectly, in its effects on how one would conduct oneself in office. But I think it can, for some decision-makers, be relevant in an even more direct way, in the sense that a decision-maker may believe, rightly or wrongly, that a candidate's views and beliefs display a character (or lack of character) that simply does not deserve to occupy a "public trust."

I agree that such a view is rife with potential for abuse. I also believe, however, that the penalties that are to be exacted for such abuse are fundamentally political in nature: and as the Miers example may demonstrate, those political remedies are by no means ineffective. (One commenter suggests that politicians can then simply conceal their religious motivations. Of course they can, under any regime. But information has a way of getting out, and in any event a politician who wants to support or oppose a nominee for religious reasons without saying so may either supply adequate public reasons, or the public reasons she supplies may be found so wanting that a voter can fairly conclude she is really acting for religious reasons and act accordingly. Better, in my view, to be candid about one's religious motives, and to be judged accordingly; but, of course, politicians may have both public and religious reasons for a particular decision, and can always offer both.)

Moreover, despite the potential for abuse, I think the cost of saying that religion is somehow a forbidden ground of discussion or decision for public decision-makers or citizens — and many who raised the Religious Test Clause argument during the recent nominations not only said it applied to politicians, but effectively treated it as disabling religion from entering into broader public debate — is greater than the benefit. It treats religion as the one and only set of values prohibited from entering into debate and decision on momentous public issues, and because so many citizens and officials clearly do think in religious terms about their decisions and will continue to do so under any regime, it robs us of a valuable degree of candor in public debate. Whatever broader values undergird our national understanding, then or now, I don't think they run to this kind of exclusion of religion from public deliberation, discussion, and decision, although obviously this is part of a larger running debate.

To say that religion may sometimes be relevant to public discussion and decision on nominees and other matters, and that the Religious Test Clause doesn't bar the use of religion in this way, although it does bar certain formal barriers to public office, is of course not the end of the story. We are then left to deliberate together about how and when (if ever) religion should enter into the public debate, or into the decisions of public officials. Although I clearly disagree with those who have answered "never," I also think we can invoke religion more or less wisely and carefully, and have said something about what that might entail. Jon Rowe concluded his comment yesterday by saying, "Personally, I'd rather live under a system of 'etiquette' where one's religion or lack thereof — whether one be a fundamentalist Christian or an atheist — is viewed as simply not related to one's fitness for public office." Taken at that broad level of generality, I can sympathize; but it is a short step from that principle to a public square that is denuded of useful, meaningful discussion. It also removes, one should acknowledge, much of what might be shallow and provocative sniping and religious bigotry — but that language, too, is the price of open debate, and knowing of that risk should remind us all the more of our own responsibility to enter into these discussions, and use both our votes and our voices, with some kind of sense of underlying principle and integrity that I've simply labeled "constitutional etiquette." Better, in my view, to have a system of etiquette where we can openly acknowledge and discuss religion, while remembering that it can never be a formal bar to public office — and in which we can add our own voices to the debate in pointing out that the mere labels "fundamentalist Christian" or "atheist" (or "Muslim") are far from descriptively complete, that they say very little about how particular individuals will carry out their offices, and that on such a broad level, they may not even say much about character.

As the always valuable Mr. Rowe commented, my reading of the Religious Test Clause can cut both ways politically. More on that tomorrow, with some concluding remarks on the differing reactions I've received to this article, and what they may suggest.