Religious Tests in the Mirror: The Constitutional Law and Constitutional Etiquette of Religion in Judicial Nominations

By Horwitz, Paul | The William and Mary Bill of Rights Journal, October 2006 | Go to article overview

Religious Tests in the Mirror: The Constitutional Law and Constitutional Etiquette of Religion in Judicial Nominations


Horwitz, Paul, The William and Mary Bill of Rights Journal


It is interesting how a different nominee changes the standards around this town.

- Senator Richard Durbin1

INTRODUCTION

The Religious Test Clause of the United States Constitution is simple enough. It provides, briefly and with seeming clarity and finality, that "no religious Test shall ever be required as a Qualification to any Office or pubUc Trust under the United States."2 And it has generally been assumed that the simplicity of the Religious Test Clause is matched by its unimportance. Although it is the only place in the main text of the Constitution that mentions religion, it is generally ignored.3 Indeed, it is an almost obUgatory move, for those few scholars who have chosen to delve into the history and meaning of this constitutional provision, to cite Laurence Tribe's magisterial treatise on constitutional law, which finds room in its overflowing pages for precisely one footnote on the Religious Test Clause.4 To add insult to injury, that footnote says Utile more than that the Clause has "little independent significance."5

We might thus fairly conclude that the Religious Test Clause belongs in the category of forgotten or irrelevant constitutional clauses, doomed to desuetude by history and practice and, as Tribe notes, by the ever-expanding jurisdiction of the Religion Clauses of the First Amendment.6 That conclusion is quickly belied, however, by even the briefest look at our public dialogue. Since 2003, the phrase "religious test" has appeared some 931 times in general news sources such as newspapers and magazines.7 A Google search for the same phrase turns up 235,000 hits.8 It would seem that the Religious Test Clause is busting out all over.

The reason, of course, is our recent history of judicial nominations. The Religious Test Clause has become a major part of the discussion of judicial nominees in the past few years. The Clause was first invoked in the context of a series of lower federal court nominations, such as that of William Pryor to the Eleventh Circuit, and later in the context of two nominations to the United States Supieme Court that occurred in 2005. In a sense, these latter nominations9 - the successful nomination of John Roberts as Chief Justice of the United States, and the abortive nomination of Harriet Miers as an Associate Justice on the Supreme Court - present mirror images of each other, with religion playing an apparent role as both a qualifying and a disqualifying feature in those nominations. Taken in combination, these nominations have given rise to loud debate over whether, when, and how religion may enter the subject of federal judicial nominations and confirmations.

Thus, this is a good time to re-examine the Religious Test Clause: to ask hard questions about its meaning and scope, and about its applicability to recent judicial nominations. More broadly, it is a good time to talk about the use, and perhaps the abuse, of religion in the public discourse that surrounds judicial nominations and confirmations. Broader still, this discussion may shed light on the appropriate role of religion in political discourse, whether by public officials or by private citizens.10

The subject of this Symposium is "Religion, Division, and the Constitution." This Article certainly falls within the ambit of that discussion. Ultimately, though, it is somewhat different in its orientation. As I will show, the Religious Test Clause in fact has little to contribute in policing the involvement of religion injudicial nominations. We must turn elsewhere for a guide through this perilous territory. We must struggle to agree upon principles that can guide us in using religion and religious rhetoric in the public discourse and official actions - nominations, confirmations, and votes in opposition to confirmation - that are implicated by the selection of our federal judges. To paraphrase a term that regularly features in current constitutional law scholarship, the true subject of this contribution is "Religion, Division, and the Constitution Outside the Courts"11-or perhaps even "Religion and Division Outside the Constitution. …

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