Kelly Shackelford – washingtonexaminer.com – February 20, 2019
Democratic senators have a new habit of asking judicial and executive branch nominees about their religious beliefs during confirmation hearings. Asking such questions violates the spirit, if not the letter, of Article VI of the Constitution. Future nominees should invoke Article VI as the shield it is intended to be.
Notwithstanding the Bill of Rights and other amendments, Article VI, clause 3, contains the Constitution’s only explicit reference to religion. It states:
“…no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
Despite this clear prohibition, Democratic senators have had no compunction using a nominee’s religious beliefs as a sort of litmus test for office.
During Judge Amy Coney Barrett’s 2017 confirmation hearing for her present position on the U.S. Court of Appeals for the 7th Circuit, Sen. Dianne Feinstein, D-Calif., referring to Barrett’s Catholic faith, infamously declared that “the dogma lives loudly within you.”
Similarly, Sens. Mazie Hirono, D-Hawaii, and Kamala Harris, D-Calif., confronted U.S. District Court of Nebraska nominee Brian Buescher about his membership in the Knights of Columbus, a Catholic charitable organization, because of that organization’s positions on a number of issues considered important to the Catholic faith.
More recently, Sen. Cory Booker, D-N.J., grilled Neomi Rao (nominated to replace Brett Kavanaugh on the U.S. Court of Appeals for the D.C. Circuit) for declining to answer his questions about what Rao believes is immoral or sinful.
Politely declining to answer, however, is the correct answer.
According to one expert, “the current trick, is to ask a nominee to voice an opinion on a well-settled and uncontroversial decision … hoping that if they answer that question, they will have a harder time refusing to answer questions about more controversial cases.”
The same rationale applies to answering questions about religious beliefs. Nominees who are asked such questions should consider the following as a model answer: “Senator, I am unable to answer that question because its premise violates Article VI, clause 3, of the Constitution.”
Responding in this manner not only serves to frustrate Democratic senators’ attempts to elicit a particular nominee’s position on certain issues, but it has the added benefit of demonstrating Article VI’s value as a shield for future nominees.
This approach is also consistent with the founders’ intent. James Madison, often called the “Father of the Constitution,” wrote in 1787 that a religious test would be both unwise and unnecessary.
A religious test for office is unwise for self-evident reasons. Namely, it opens the door for a particular sect or denomination to monopolize government power. It also deprives the government of the benefits associated with the diversity of belief and viewpoint.
Madison believed a religious test was unnecessary because it is superfluous with the oath of office. The sentence in Article VI, clause 3, immediately preceding the no-religious-test clause requires that all legislators, officers, and judges be bound by an oath or affirmation to support the Constitution.
According to Madison, the oath of office was sufficient to ensure that officeholders demonstrated the necessary ethos for public office:
“If the person swearing believes in the supreme Being who is invoked, and in the Penal consequences of offending him, either in this or a future world or both, he will be under the same restraint from perjury as if he had previously subscribed a test requiring this belief.”
Nominees who find themselves on the receiving end of questions directed at their religious beliefs or moral convictions should likewise invoke the oath of office as sufficient to ensure they will support the Constitution.
So, if a nominee really wanted to close the door on a potential litmus test of acceptable religious convictions, they could add to the model response suggested above: “And consistent with Article VI, clause 3, if confirmed I will be bound by oath or affirmation to support the Constitution.”
Fortunately, the Senate has recognized the danger that questions targeting a nominee’s religious beliefs presents, and it recently passed a resolution stating that disqualifying a nominee due to their membership in the Knights of Columbus violates Article VI, clause 3.
The Senate resolution is certainly a step in the right direction. But nominees themselves should not expect an immediate cessation of cleverly crafted questions designed to elicit their religious beliefs. Nominees who face such questions should thus invoke the shield of Article VI, clause 3, and put an end to this egregious form of religious bigotry.
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