Academic journal article Harvard Law Review

An Originalist Analysis of the No Religious Test Clause

Academic journal article Harvard Law Review

An Originalist Analysis of the No Religious Test Clause

Article excerpt

Few issues provoke more impassioned debate in America than the relationship between church and state. Until recently, however, this debate lacked any extended discussion of the original Constitution's only provision addressing that relationship: the No Religious Test Clause of Article VI. This largely ignored or forgotten provision of the Constitution attracted attention during recent judicial confirmation hearings when certain members of the Senate Judiciary Committee were accused of violating the provision by "establishing a litmus test that would exclude people of orthodox religious beliefs--Jew, Christian, and Muslim alike--from the courts." (1) Other commentators suggested that President George W. Bush violated the provision when he selected judicial nominees or allowed hiring decisions for federally funded jobs to be made on the basis of religion under his faith-based initiatives. (2) Some commentators have even suggested that certain members of the House of Representatives violated the No Religious Test Clause when the House passed over a Catholic cleric for its chaplain. (3)

Through a textual and historical analysis of the No Religious Test Clause, this Note argues that the clause prohibits only a government-imposed requirement that an individual seeking public office bind himself, through an oath or affirmation, to adhere to a particular religious belief or to celebrate a particular religious sacrament. Beyond this limitation, it does not forbid officials--or the general citizenry--from considering or even inquiring into an individual's religious beliefs when deciding whether to nominate, confirm, or vote for the individual. Thus, many--though not all--of the recent allegations of No Religious Test Clause violations are misguided.

This Note proceeds in three parts. Part I discusses the text and the pre-ratification history of the No Religious Test Clause, the debates concerning its ratification, and judicial interpretations of the clause. Part II examines whether recent congressional and presidential actions violate the clause. Part III concludes.

I. THE TEXT AND HISTORY OF THE NO RELIGIOUS TEST CLAUSE

Article VI, Clause 3, of the Constitution contains one sentence with two separate provisions: the Oath Clause and the No Religious Test Clause. (4) The Oath Clause requires that certain government officials be "bound by Oath or Affirmation" to support the Constitution. (5) Limiting this mandate, the No Religious Test Clause then provides, "but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." (6)

The No Religious Test Clause cannot be understood without first defining the term "religious Test." The Constitution, however, provides no such definition. Moreover, the constitutional text permits interpretations of the No Religious Test Clause as prohibiting only those religious tests included as part of an official's formal oath, or all religious tests regardless of whether they occur during a formal oath, or something in between. An analysis of the historical background of the clause is therefore necessary to understand its meaning.

Historical evidence demonstrates that the Founders understood the clause as prohibiting the sorts of religious tests that were common in England and in many states at the time of ratification. History also shows that the Founders understood the clause as having a narrow purpose--namely, prohibiting the government from requiring an individual to bind himself to a religious belief or sacrament through an oath or affirmation in order to hold federal office. Fittingly, then, the Founders placed the No Religious Test Clause in the same sentence as the Oath Clause and wrote it as an explicit limitation on the scope of the government's power under the Oath Clause.

A. Religious Tests at the Founding

At the Founding, England and many American states used religious tests to protect their established churches or preferred religions. …

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