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A Note on the Religious Test Clause

Article VI of the U.S. Constitution provides that “…no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

The confirmation wars and culture wars of the past couple of decades have led to a lot of misunderstanding of this passage. This 2006 piece by law professor Paul Horwitz is a good place to start in clearing things up.

Contrary to some imaginings, the No Religious Test clause does not require a President to take no notice of the religious views of a person seeking appointment to public office. Nor does it require a Senator to set aside any notice of whether a nominee is of any particular sect (or a religious non-believer or follower of Scientology) in voting for or against confirmation. Nor — to take an even more extreme claim — does it mean that members of the electorate somehow violate the constitution when as voters they take account of candidates’ religious views.

Instead, the clause prohibits laws that would bar persons from serving in federal office unless they pledge fealty to a religious tenet. It is linked in its placement in Article VI to the preceding Oaths Clause. (It is also the only mention of religion in the originally enacted Constitution.)

It is true, as Horwitz argues, that constitutional etiquette and a due regard for pluralism may have evolved into a strong and valuable public norm here even if they do not provide a right enforceable by courts. And overstepping this norm may provide a good reason to criticize a public figure who seems to hold a certain nominee’s religion against him or her. In a more recent post, Horwitz applies those standards to the recent controversy over Sens. Dianne Feinstein’s and Dick Durbin’s comments and finds that Feinstein’s and especially Durbin’s remarks do not come off well.

Each of us should remember that however we choose to interpret the clause, that interpretation will inevitably protect appointees of exactly that strain of religious belief or unbelief we like least.

For a somewhat contrasting view, see this Harvard Law Review student note from 2007, which argues that while the President is generally in the clear when taking an interest in nominees’ religion, Senators may not be during hearings because the nominee has been placed under oath and that (the author argues) is too close to the historic abuse, at which the clause was aimed, of requiring sworn religious oaths.

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Intellectual Liberty and the Student Demands

Of the demands being made by protesters in the current wave of unrest on American campuses, some no doubt are well grounded and worth considering. Some of them, on the other hand, challenge academic freedom head on. Some would take control of curriculum and hiring out of the hands of faculty. Some would enforce conformity of thought. Some would attack the rights of dissenters. Some would merely gut the seriousness of the university.

Last night I did a long series of tweets drawing on a website which sympathetically compiles demands from campus protests — — and noting some of the more troublesome instances:

  • From Dartmouth: “All professors will be required to be trained in not only cultural competency but also the importance of social justice in their day-to-day work.”
  • From Wesleyan: “An anonymous student reporting system for cases of bias, including microaggressions, perpetrated by faculty and staff.”
  • From the University of North Carolina at Chapel Hill: “White professors must be discouraged from leading and teaching departments about demographics and societies colonized, massacred, or enslaved under white supremacy.”
  • From Guilford College: “We suggest that every week a faculty member come forward and publicly admit their participation in racism inside the classroom via a letter to the editor” in the college paper.

My series drew and continues to draw a strong reaction. Now I’ve done a Storify pulling it together as a single narrative and including some of the responses. Read it here. (cross-posted from Overlawyered)

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The Washington Post’s reporter, Arelis Hernández, doesn’t seem quite to realize just how outrageous this story is about churches angling for exemptions from a state-mandated stormwater fee in Prince George’s County, Maryland:

Thomas and other pastors also have agreed to start “green” ministries to maintain the improvements at their churches, and to preach environmentally focused sermons to educate their congregations.

In exchange for the commitments both as to physical upgrades to church property and the right sorts of exhortation addressed to their congregations, the churches are getting very tangible benefits, some coming directly out of the pockets of Prince George’s County taxpayers (emphasis added):

So far, about 30 churches have applied. Forestville Redeemer was the first. They are planning to install rain barrels, build rain gardens, plant trees and, perhaps, replace their blacktop with permeable pavement. The government will cover most of the cost. In return, a fee that was estimated at $744 a year will be reduced to “virtually nothing,” Ortiz said.

Organized churches play a central role in P.G. County politics, so it is not especially surprising to see a special deal cut for them. What we might not have expected was how openly pastors were willing to trade the content of sermons for government cash on the (rain) barrel. More coverage: WBAL, Derek Hunter/Daily Caller, and Ira Stoll, who writes:

But the bigger point is a problem with big government and taxes in general. The more burdensome the taxes are, the greater is the temptation of those crushed by them to trade their freedom and independence for a discount on them, and the more power the government has to dictate behavior. The tax becomes not a way to raise revenue for the government, but a method for exerting control.

Let’s hope religion-in-public-life pundits don’t pull their punches on exactly how bad this sort of deal is. They should be at least as upset as those of us on the secular side.

This morning the Supreme Court decided Town of Greece v. Galloway, on a challenge to prayers preceding a town council meeting. Evidence was that the small town of Greece, N.Y., near Rochester, had reached out to all the churches in a local directory offering the opportunity to give invocations; it happened that all the churches in town were Christian, but there was no sign that the town was conniving to avoid other religious faiths.

Quoting AP: “The court said in a 5-4 decision that the content of the prayers is not significant as long as officials make a good-faith effort at inclusion. … ‘The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent, rather than to exclude or coerce nonbelievers,’ [Anthony] Kennedy said [for the majority].”

The Court was split several ways, with Alito and Thomas/Scalia writing separately from the majority on various points, the latter two declining to join one section of the majority opinion, and Breyer writing separately as well as joining the dissent. Jonathan Adler analyzes the opinions at Volokh Conspiracy.

The fact is that the Justices were disputing a very narrow strip of territory in this case. Notably, all four liberal justices endorsed the Court’s earlier ruling in Marsh v. Chambers approving Nebraska’s use of prayer before legislative sessions. In other words, not a single current Justice in fact fits the “raving secularist liberal” caricature we sometimes hear about.

There will be overreactions by combatants on both sides of the culture wars. A few social conservatives, who I suspect must not have read the Kennedy opinion closely, are crowing as if the Court had somehow vindicated the views about religion and the public square of David Barton or the Witherspoon Institute. On the opposite side, Rev. Barry Lynn, executive director of Americans United for the Separation of Church and State, declared that the Court “just relegated millions of Americans— both believers and nonbelievers—to second-class citizenship.”

That wasn’t my reaction. As a convinced secularist I think I can live with the careful, limited balance Kennedy strikes, and I suspect most Americans will feel the same.

The American Humanist Association announced that it is launching a program training people in the giving of secular invocations. So did the Freedom from Religion Foundation, but with very different aims in mind: the AHA wants to show that unbelievers can fully join in and be an equal part of the civic ideals traditionally symbolized by invocations, while the FFRF is more intent on upsetting the applecart and creating enough discomfort with the whole idea of such a ceremony to cause its discontinuance.

I have to say I like the AHA’s approach better, but your views may differ.

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San Marino stampContrary to some breathless reports in the conservative press, the Obama administration isn’t downgrading U.S. diplomatic relations with the Vatican. As the State Department’s explanation notes, 1) there’s no downgrade of representation or staff reduction; 2) the ambassador’s residence isn’t moving; 3) the move of office staff will protect them better from terrorism, and within the guarded U.S. compound they’ll be in a separate building with separate address and entrance; 4) all countries with Vatican embassies already locate those embassies outside VC territory and many co-locate with their general Rome embassy serving Italy.

However, although the Obama administration isn’t downgrading U.S. ambassadorial relations with the Vatican, it *should* downgrade them. From 1867 to 1984 the U.S. had no such relations (which of course was consistent with keeping up a free flow of communications between the two entities) and it was a lapse for President Reagan to depart from this sound approach. Religions are not countries and we rightly would not consider opening embassy-level relations with other religious entities. Vatican City has a population estimated at 840, a long way short of the historically genuine if small local populations of statelets like San Marino and Liechtenstein (about 30,000 each). And even if we agreed to give Vatican City the same treatment as these much larger statelets we’d want to change current practice. As a friend writes to explain:

Our ambassador to France is also our ambassador to Monaco (without a permanent physical plant onsite in Monaco) and ditto for Spain/Andorra and various other combinations. The Vatican (presumably for fear of opening the floodgates) doesn’t accept ambassadors who are also their sending country’s ambassador to Italy (although San Marino is not so picky) so some smaller countries have e.g. their ambassador to Switzerland also accredited to the Vatican.

By the way, I didn’t know this: “In 2011, Ireland closed their embassy to the Holy See entirely, and rely on visiting envoys to keep up diplomatic ties.” But it seems to be true.

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But now it seems those dreadful secular right types are spoiling everything [Richard Congress, who it appears has also discovered that religious enthusiasm often fuels social movements agreeable to the left]

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Oh, what outrage some of our grievance-collecting friends managed to work up over the story of the Florida Atlantic professor who had asked students to write the name “Jesus” on a slip of paper and step on it. John Hawkins at Right Wing News declared that Prof. Deandra Poole had gotten his “just deserts” in being suspended by the university following days of talk show execration. Jim Hoft at Gateway Pundit flatly described Prof. Poole as “far left,” on what evidence is not clear from his post. Fox News Insider informed readers that Poole was “also the vice chairman of the Palm Beach County Democratic Party” — feeding their presumed expectation that a Democratic party official, even an African-American one in a southern city, will turn out when examined closely to be a devotee of Black-Mass-like sacrilege. The Catholic League’s insufferable Bill Donohue suggested that Poole would never have offered students a chance to write the name “Obama” on a slip of paper and step on it.

If you suspected the actual story would prove more complicated than the first reports made it out to be, you’re right. On Monday Poole told his story in an interview with Inside Higher Ed (also summarized at the Moral Compass blog). Sample:

Much of the critical commentary about Poole has suggested that he is anti-Christian. In fact, he said, he has been connected to churches all of his life, has served as a Sunday school teacher, and understands the power of the word “Jesus” on a piece of paper because he cares deeply about Jesus.
“I am very religious,” he said. “I see how the name Jesus is symbolic. For people like myself, Jesus is my lord and savior. It’s how I identify myself as a Christian.”

A few of the sites that had run coverage implicitly or explicitly blasting Poole as a crazy liberal atheist have noted these new details, and sometimes even walked the story back a bit. Others, however, haven’t bothered. Why should they, when they can instead move on to the next outrage to whip their readers up about?

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Did you know opponents of Bork’s confirmation waged a whispering campaign against the conservative nominee in the South on the grounds that he wasn’t a religious believer? I explain in a New York Post op-ed out this morning. According to this article at Catholic World Report, Bork considered himself an atheist at the time of the Senate confirmation fight; later, he was to convert to Catholicism.

There are enough ironies here to satisfy anyone. Had Bork joined the Court — assuming the trajectory of his attraction toward religious belief would not itself have been altered by that fact — he might well have outflanked Scalia in bringing a jurisprudence infused by orthodox Catholicism to the Court. For both supporters and opponents, believers and non-, there are lessons here in humility about how far off base we can fall if we treat adversaries’ (or friends’) intellectual positions as fixed and immutable. More from Nick Gillespie at Reason.

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Last week at the Federalist Society annual lawyers’ convention, Texas Senator-elect Ted Cruz made the following remarks (beginning at 23:05 on the video):

The President, every Democrat, went throughout this campaign, saying, “Republicans want to take away contraceptives.” What utter and complete nonsense. I don’t know a single Republican on the face of the globe who wants to take away anybody’s contraceptives. Look, my wife and I have two little girls. I’m thrilled we don’t have seventeen.

This got a deserved laugh from the audience. But can it really be the case that Sen.-elect Cruz doesn’t “know a single Republican on the face of the globe who wants to take away anybody’s contraceptives”?

Perhaps the editors of National Review could introduce him to some. Less than two weeks ago NR published an article by Robert P. George, probably the most ubiquitous Catholic intellectual on the Right these days, and David L. Tubbs, denouncing on its 40th anniversary Eisenstadt v. Baird, the decision by which the U.S. Supreme Court struck down as a violation of the right to personal privacy a Massachusetts law against the sale of contraceptives to unmarried persons. With unmistakable distaste, George and Tubbs blast the Court for embracing “a right of unmarried persons to have their lifestyle choices facilitated by the legal availability of contraceptives.” They complain that until Eisenstadt, such laws had been in force “since the 1870s as a straightforward exercise of the ‘police power’ — a state legislature’s broad constitutional authority to promote public health, safety, and morals.”

Now, it would be possible — it happens regularly in arguments about constitutional law — to criticize the logic and derivation of a decision like Eisenstadt without actually defending the wisdom of the law being struck down. Justice Clarence Thomas, for example, dissenting from the Lawrence v. Texas decision, famously described laws against consensual private sodomy as “uncommonly silly” even while agreeing with Justice Antonin Scalia that the U.S. Constitution does not bar such laws.

But that doesn’t appear to be George-and-Tubbs’s game at all. Far from including any “to be sure, we don’t favor such a law as policy” disclaimers, they praise laws like the one struck down as ways for legislators “to discourage people from engaging in sexual relations outside the matrimonial bond” and “reinforce cultural norms about the undesirability of having sex and children outside of marriage.” Robert George, who teaches at Princeton and is visiting at Harvard Law this year, has written an entire book revealingly titled Making Men Moral, praising and defending “morals laws” applying criminal sanctions to what was once called victimless crime, such as consensual private homosexual activity and the sale of contraceptives.

We know that the two must be acquainted, since in a NYT profile Prof. Robert George is described as “Mr. Cruz’s adviser at Princeton in the early 1990s.” Perhaps we should read the relevant sentence in a slightly amended way, to say that the Senator-elect doesn’t know a single elected Republican on the face of the globe who favors (or at least publicly favors) taking away anyone’s contraceptives. Prof. Robert George can afford to promote misplaced nostalgia about 1950s morals legislation, but GOP candidates who hope to be elected these days cannot. [Corrected to remove a sentence that left a misleading implication about Cruz’s own religious affiliation, which is Southern Baptist.]

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Libertarians and religious liberty

Tim Carney, the influential columnist at the D.C. Examiner, writes as if libertarians have been AWOL or worse when it comes to defending religious liberty from the incursions of the modern liberal-bureaucratic state. I try to set him straight in a new post at Cato at Liberty. More: Carney responds; Jordan Bloom, The American Conservative, Rick Esenberg. [cross-posted from Overlawyered]

Of course religious liberty should be a two-way (multi-way?) street. Just as unbelievers should be committed to upholding the religious liberty of the Catholic Church, so, as Andrew Stuttaford reminds us, it would be nice to feel confident that the Catholic Church was equally committed to upholding ours.

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