Democrats Are Increasingly Comfortable With Religious Tests

Attempting to create the impression that faithful Christians whose beliefs are at odds with newly sanctified cultural mores are incapable of doing their job.

"Do you consider yourself an orthodox Catholic?" Sen. Dick Durbin (D-Ill.) asked Notre Dame Law School professor Amy Coney Barrett, a nominee for a federal appeals court, yesterday.

Since Durbin inquired in the form of a question, we can only assume that Barrett's answer was pertinent to the confirmation. That is problematic considering the Constitution explicitly states that no religion—not even a belief in orthodox liberalism—should be a prerequisite for holding a federal office.

At least Durbin's query about "orthodox" Catholicism was based on some concocted apprehension about Barrett's ability to overcome faith to fulfill her obligations as a judge. The professor, who apparently takes both the law and her faith seriously enough to have pondered this question in writing, told Durbin, "Any kind of conviction, religious or otherwise, should never surpass the law."

But Barrett's Catholicism would come up a number of times during the hearing, and in far more troubling ways.

"When you read your speeches, the conclusion one draws is that the dogma lives loudly within you," Sen. Dianne Feinstein (D-Calif.) claimed. "And that's of concern when you come to big issues that large numbers of people have fought for for years in this country."

For one thing, Barrett's real sin, as it were, isn't that her faith might get in the way of doing her job but that chances are exceptionally high she will take her oath to defend the Constitution far more seriously than Feinstein does. When the California senator claims to be troubled by Barrett's "dogma," what she was really saying was: "You clerked for Judge Antonin Scalia, which means you'll probably take the Constitution far too literally. Yet, at the same time, you hold heretical personal views on the only two constitutional rights that my fellow liberals are dogmatic about: abortion and same-sex marriage."

It is irksome, no doubt, that Barrett's faith informs her views. Our backgrounds and beliefs always color our opinions. This is not yet an illegal act. But these lines of questioning, which are becoming increasingly prevalent in political discourse, are an attempt to create the impression that faithful Christians whose beliefs are at odds with newly sanctified cultural mores are incapable of doing their job. They are guilty of another kind of apostasy.

This is why Sen. Al Franken (D-Minn.) asked Barrett about speaking honorariums she received from the religious liberty nonprofit Alliance Defending Freedom, comparing the group to former deposed Cambodian leader Pol Pot. (The group was recently smeared by the Southern Poverty Law Center as a hate group for pursuing religious freedom cases in court.)

"I question your judgement," the former star of "Stuart Saves His Family" lectured the mother of seven.

This is why Sen. Bernie Sanders (I-Vt.) deployed a religious test when questioning Russell Vought, then-nominee for deputy director of the Office of Management and Budget, or OMB, earlier this summer. Sanders was upset by an article Vought authored in which he was critical of the oft-repeated platitude that everyone worships the same God. Sanders dispensed with theater and simply accused Vought of a thought crime, specifically being an Islamophobe for arguing that the only path to salvation is through Jesus Christ.

Yes, Bernie. Us, too. So what? Does a nominee have to believe everyone goes to heaven to crunch numbers at the OMB? I don't fashion myself an expert on theological doctrine, but I imagine that a rather significant number of Christians would be out of work if this view of salvation were to exclude them from holding governmental positions. Which is, of course, the point.

As we've seen in the Supreme Court, "orthodox" Catholics can just as easily (and hopefully) be originalists—which, whatever you might make of the philosophy, exhibits far more rigid adherence to Constitution than the magisterium when it comes to matters of law. After all, in the law review article that spurred all this supposed trepidation among Senate Democrats, Barrett argued that Catholic judges should recuse themselves from cases in which their faith might prohibit them from carrying out law they disagree with, specifically the death penalty.

If a nominee's beliefs conflict with the Constitution, it's important for those vetting them to find out. But for Feinstein, the very presence of Catholicism is "concerning." So the problem here is that the dogma of Sanders and Feinstein is becoming increasingly hostile toward orthodox faiths, not the other way around.

Princeton University President Christopher L. Eisgruber sent the following letter Friday to the Republican chair and the ranking Democrat on the U.S. Senate Committee on the Judiciary.

September 8, 2017

The Honorable Charles E. Grassley
Chairman
The United States Senate Committee on the Judiciary
Washington, DC 20510

The Honorable Dianne Feinstein
Ranking Member
The United States Senate Committee on the Judiciary
Washington, DC 20510

Dear Chairman Grassley and Ranking Member Feinstein:

I write, as a university president and a constitutional scholar with expertise on religious freedom and judicial appointments, to express concern about questions addressed to Professor Amy Barrett during her confirmation hearings and to urge that the Committee on the Judiciary refrain from interrogating nominees about the religious or spiritual foundations of their jurisprudential views.

Article VI of the United States Constitution provides explicitly that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” This bold endorsement of religious freedom was among the original Constitution’s most pathbreaking provisions. The Supreme Court’s unanimous decision in Torcaso v. Watkins (1961), holding that the First and Fourteenth Amendments render this principle applicable to state offices and that it protects non-believers along with believers of all kinds, is among the greatest landmarks in America’s jurisprudence of religious freedom. Article VI’s prohibition of religious tests is a critical guarantee of equality and liberty, and it is part of what should make all of us proud to be Americans.

By prohibiting religious tests, the Constitution makes it impermissible to deny any person a national, state, or local office on the basis of their religious convictions or lack thereof. Because religious belief is constitutionally irrelevant to the qualifications for a federal judgeship, the Senate should not interrogate any nominee about those beliefs. I believe, more specifically, that the questions directed to Professor Barrett about her faith were not consistent with the principle set forth in the Constitution’s “no religious test” clause.

I am sympathetic to the challenges that your committee faces as it considers nominees to the federal bench. In my book The Next Justice: Repairing the Supreme Court Appointments Process (Princeton University Press, 2007), I argued that your committee need not defer to presidential nominations, and that the Constitution permits senators to probe the judicial philosophies of nominees. It is, however, possible to probe those philosophies without reference to the religious affiliation or theological views of a nominee, and Article VI insists that the Senate observe that restriction.

The questions asked of Professor Barrett about her Catholic faith appear to have been provoked in part by her co-authored article, “Catholic Judges in Capital Cases” (1998). I have read that article, and I believe that the views expressed in it are fully consistent with a judge’s obligation to uphold the law and the Constitution. As a university president committed to free speech, academic freedom, and religious pluralism, I must add that, in my view, Professor Barrett’s qualifications become stronger by virtue of her willingness to write candidly and intelligently about difficult and sensitive ethical questions: our universities, our judiciary, and our country will be the poorer if the Senate prefers nominees who remain silent on such topics.

I am deeply concerned by the harsh and often unfair criticisms that are now routinely levelled from both sides of the political spectrum against distinguished judicial nominees who would serve this country honorably and well. On the basis of her accomplishments and scholarly writing, I believe that Professor Barrett is in that category. She and other nominees ought in any event to be evaluated on the basis of their professional ability and jurisprudential philosophy, not their religion: every Senator and every American should cherish and safeguard vigorously the freedom guaranteed by the inspiring principle set forth in Article VI of the United States Constitution.

Respectfully submitted,

Christopher L. Eisgruber

cc: Senator Orrin G. Hatch
Senator Patrick Leahy
Senator Lindsey Graham
Senator Dick Durbin
Senator John Cornyn
Senator Sheldon Whitehouse
Senator Michael S. Lee
Senator Amy Klobuchar
Senator Ted Cruz
Senator Al Franken
Senator Ben Sasse
Senator Christopher A. Coons
Senator Jeff Flake
Senator Richard Blumenthal
Senator Mike Crapo
Senator Mazie Hirono
Senator Thom Tillis
Senator John Kennedy

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