One of the defining characteristics of American liberty is that a
person's religious faith - or lack of religious faith - is generally
a private matter outside the realm of government concern.
Indeed, Article VI of the Constitution bars any religious test
for prospective government officials.
But now, President Bush's nomination of Samuel Alito to a seat on
the US Supreme Court is raising a sensitive question: To what extent
should a nominee's religious faith be a legitimate area of inquiry
during Senate confirmation hearings?
The issue arises as Judge Alito stands at the threshold of making
Supreme Court history. Should he win confirmation, he will become
the fifth Roman Catholic among the roster of nine justices, marking
the first time a majority on the high court would be Catholic.
It is a remarkable development, considering he would be only the
12th Catholic justice on a court that has seen the service of more
than 100 justices.
But in a country with a tradition of separation between church
and state, any focus on Catholicism seems to some analysts more a
relic of anti-Catholic prejudice than a well-intentioned effort to
examine Alito's temperament, intellect, or judicial philosophy.
"The question is fidelity to the law," says Douglas Kmiec, a
constitutional law professor at Pepperdine University School of Law.
"So it is entirely appropriate for the Senate to make that inquiry.
What is inappropriate is for the Senate to only make that inquiry of
He also says, "The history of those Senate inquiries is that
[Catholics] are the only people who have been asked." The late
Justice William Brennan, Justices Antonin Scalia and Anthony
Kennedy, and, most recently, Chief Justice John Roberts, were all
asked if their Catholic faith would interfere with their ability to
uphold the Constitution and the laws of the United States, Professor
Now the question is emerging anew as supporters and opponents
gear up for what analysts say could become judicial-confirmation
Armageddon. Some see such questions as a form of anti-Catholic
bigotry. Others see complaints about religious questioning as being
part of a campaign to head off aggressive interrogation.
"It is a tactic aimed at shutting down discussion on a crucial
area of legal philosophy," says the Rev. C. Welton Gaddy, president
of the Interfaith Alliance. "It is very difficult to get into the
process without being labeled anti-Catholic. And that is by design
by people on the religious right."
Mr. Gaddy adds, "In reality, it is not about religion. It is
Many older Americans are aware of the so-called Catholic question
from the way presidential candidate John F. Kennedy responded in
1960 to a group of ministers who expressed their concerns that a
Catholic president might have dual loyalties to both the US and the
Mr. Kennedy answered: "I do not speak for my church on public
matters, and the church does not speak for me." The response went a
long way in opening doors for American Catholics seeking positions
of leadership in a country once dominated by Protestants. But many
are asking why the question is still arising in 2005.
Supreme Court justices must swear two oaths: to protect and
defend the Constitution and to faithfully and impartially uphold the
Constitution and US laws. Legal analysts say that while it is
sometimes easy to distinguish between the rulings of liberal and
conservative judges, it is impossible to identify any meaningful
characteristics of a Catholic judge, or Jewish judge, or Protestant