Religious Test for the Supreme Court

“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.” — Article VI, Clause 3 of the US Constitution.

“I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [Associate Justice of the US Supreme Court] under the Constitution and laws of the United States. So help me God.” — Oath of Office for a Supreme Court Justice.

Even though there is no formal religious test for office, some on the Left have questioned the suitability of Justice John Roberts, Jr. for the Supreme Court because he takes his Catholic faith seriously. The implicit assumption is that a Catholic can not render a judicial decision with respect to abortion consistent with the law since the Catholic Church has a strong position against abortion. Make no mistake. The question is primarily about abortion.

Questions about Roberts’ religion on the Left, from the likes of Christopher Hitchens and E. J. Dionne are only being broached because of abortion. The Catholic Church is also strongly (though not as strongly) against capital punishment. However, the legal status of capital punishment under a Catholic judge is not the issue that worries Dionne or Hitchens. Moreover, if a Conservative Protestant where to question the qualifications of a Catholic judge because of the Church’s stand against capital punishment, he or she would be loudly and properly chastised for religious intolerance. However, in the service of abortion, the Left and the media that support the Left, have difficulty in recognizing any limits of probity.

Hitchens’ motivation is transparent. He is fundamentally anti-religious and doesn’t trust anyone of deep religious conviction, be it Mother Theresa or Judge Roberts. That is why Hitchens is one of the few on the Left that is so eloquently persuasive about the necessity of fighting Islamofascism in Afghanistan, Iraq, and elsewhere. With others on the Left, Hitchens stands against fascism, but he reserves special opprobrium for religiously-motivated fascists.

By contrast, Dionne’s questions about the relationship of faith and the state are far more serious and subtle. Dionne and Conservatives share a common belief that religious faith informs our values and who we are as a people, a community, and as a country. Religious and ethical beliefs affect the way we help others and the role we expect of the government acting on our behalf to act. The religious culture of a country defines who we are and how we govern. Hence, religion ought not to be relegated solely to private spirituality, but should have an important voice in the public square.

When then are the general ethical and religious perspectives of a leader important? How should such questions appropriately enter the public discourse? While there are no particular religious doctrinal tests to apply, surely we have to appreciate the values of our leaders and those values are many times informed by religious belief. For example, if a potential leader were an avowed pacifist, whether by religious or ethical conviction, it would be an important factor in assessing the suitability of someone who might be our Commander-and-Chief or someone who might vote on military appropriation bills.

It is reasonable for a citizen to weigh the full character, including the intelligence and religious and ethical underpinnings of our leaders — at least the ones we vote for. Those leaders are the ones we choose to act on our behalf. The law and Constitution allow no restrictions on religious affiliation for officials. Though we as voters ought not to vote on narrow sectarian grounds, is it not responsible to weigh the entire set of human qualities and beliefs in voting for our leaders?

First, though we as voters can consider a broad range of judgment criteria, our representatives cannot use religious litmus tests in their capacity as government officials. This would tie state decisions too directly to religious affiliation. A Senator of one particular religion questioning potential judges of a different religious belief at a public hearing would give the unseemly appearance of an inquisition.

Moreover, judges are not political leaders. They are ideally neutral arbitrators of existing law. Dionne writes, “President Bush has spoken about the political implications of his faith. His nominee should not be afraid to do the same.” Dionne skirts by the key point, but leaves it unexamined blinded by the Left’s misunderstanding of the role of judges. Bush is a political leader and can be judged as a politician. Judges, contrary to the Liberal intuition, ought not to be political and as such should be evaluated under a narrower range of criteria.

Of a judge, we may query about judicial intelligence, temperament, and philosophy. Of his other convictions, we only need to know his or her fidelity to the oath to “…faithfully and impartially discharge and perform all the duties incumbent upon me as [Associate Justice of the US Supreme Court] under the Constitution and laws of the United States.” If a potential judge can take that oath with integrity, then examination of his or her religious convictions descends more into religious bigotry.

The notion that Judge Roberts’s Catholicism makes him an inappropriate selection for the Supreme Court says more about the intolerance of a troubling undercurrent in modern Liberalism than it does about Judge Roberts. It reflects more of the sacrifice of all Liberal jurisprudence at the altar of unrestricted abortion rights. Protests around abortion clinics, limiting the First Amendment right to peaceably assemble, were prohibited in service of abortion. Now traditional Liberal religious tolerance is being lost in service of abortion.

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