The Supreme Court nomination of Judge John Roberts has reignited the controversy over faith and the confirmation process. Law professor Jonathan Turley has reported in The Los Angeles Times that during a meeting with Roberts on Capitol Hill, Senator Dick Durbin, Democrat of Illinois, asked him about potential conflicts between his Catholic beliefs and the law when it came to abortion or the death penalty. While Durbin's office denies the account, it has added more fuel to conservative complaints that Democrats are imposing a bigoted and unlawful "religious test" to keep "people of faith" off the federal bench.
From everything that has been reported so far, Roberts looks eminently qualified for the high court. His record paints a picture of a temperamentally moderate jurist who would be very unlikely to challenge precedent in the name of ideology, or to use his public position to advance his personal values. But what if there was a nominee who showed less restraint? Would that candidate's beliefs still be out of bounds for questioning as long as they were religious in nature?
"Our Constitution guarantees there'll be no…religious litmus test," Family Research Council president Tony Perkins said on Fox News.
Let's look at the Constitution. Article VI says that US senators, representatives, state legislators, and federal and state judicial and executive officeholders "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." The context makes it fairly clear what the original intent of this clause was. An officeholder could not be required to take an oath or perform a religious ritual affirming his allegiance to a particular religion or denomination, or even a general belief in God.
Writings from that time show that many Framers—such as Oliver Ellsworth, a Constitutional Convention delegate from Connecticut and later the Chief Justice of the United States—believed it was perfectly acceptable, despite the religious test ban, for legislators to ensure that appointed officials were "sincere friends to religion." The flip side of this religion-friendly attitude was that, for a long time, people of non-mainstream faith—Catholics and Jews, among others—were regarded as virtually ineligible for high-level offices. When John F. Kennedy, our first Catholic president, challenged this prejudice during the 1960 campaign, he did so on the explicit assumption that a public servant's faith is a private matter which should neither be held against him nor influence his decisions in office.
Today's religious conservatives find that view unsatisfactory. Indeed, most of them acknowledge that the "religious intolerance" they denounce has little to do with religious self-identification. As Perkins put it, commenting on Durbin's alleged questioning of Roberts about faith-related issues: "It sends a very clear message to people: 'OK, you can be religious, but if you want to do that and live by those religious convictions, then…you have to choose between that and serving in public office.' " Yet no one has made an issue out of any nominee's ability to live by his or her religious convictions in private life. (If a Catholic nominee were asked whether he or she shuns artificial birth control, that would be completely outrageous.) The question is whether a jurist's or politician's religion should play a role in his or her views on law and policy.
Philosophically, we are now light years away from the era in which John F. Kennedy made his plea for separation of politics and faith. We live in a time when there is a growing movement, backed by most conservatives, for the Catholic Church to excommunicate public officials who support abortion rights. If religion is going to have that kind of political influence, it's a bit hypocritical to complain when a politician's or judge's religion becomes an issue. A candidate's or nominee's ideology should be fair game whether it's religious or secular in nature, whether it's rooted in conservative Catholicism or liberal feminism.
Conversely, a non-religious ideological witch hunt can be just as bad as a religious one; look at the attempts to exploit Roberts's ties to the Federalist Society, a group whose membership spans a wide range of conservative and libertarian views. (Full disclosure: I have been a paid speaker at several of the society's events.)
As for complaints of "religious intolerance," let's not forget that, in today's America, an outspoken atheist would have a snowball's chance in hell of being confirmed for a federal judgeship. For that matter, he would never be nominated.