There’s a Reason He Isn’t the Christian Legal Scholar

Jonathan Dowty, who calls himself the Christian Fighter Pilot, demonstrates for all to see why he isn’t the Christian Legal Scholar by taking a brave leap in the dark in an attempt to dispute me on something and landing on his face with a resounding thud.

Constitution550

He is attempting to respond to me pointing out that Gordon Klingenschmitt is utterly clueless about the meaning of the No Religious Tests clause of the Constitution for claiming that the fact that many Democrats would not vote for Mark Green, Trump’s second nominee to be Army Secretary, because of his many inane and bigoted religious and political views. He ends up making as big a fool of himself as Klingenschmitt did.

Brayton mocked Klingenschmitt’s statement as “absurd,” and then followed it with his own absurdity:

A religious test for office is a law that makes someone ineligible or eligible to hold a certain position based on their religious views; it’s not people criticizing someone’s religious views when they are up for a government position.

Let’s review. Brayton says

A religious test for office is a law…

That’s not necessarily true. The US Constitution says only

…no religious test shall ever be required as a qualification to any office or public trust under the United States.

The Constitution says “no religious test.” It does not say the “test” has to be a law, contrary to Brayton’s claim. Because the restriction is found in the US Constitution, the only legitimate criticism is the “test” must be an act of the government. That is, a private citizen cannot create an unconstitutional “religious test” because, by definition, a private citizen cannot violate the Constitution.

Thank you for proving my point. But Dowty seems to think that if a public official says they won’t vote for a nominee based on their religious views, that official is the government and therefore is creating an unconstitutional test:

However, under the Constitution the government can’t do that, which is where it starts to become an issue — and where Klingenschmitt’s statement gains steam. A few Senators parroted or expressed “concern” over the criticisms of Mark Green by homosexual activists — criticisms that were rooted in his religious beliefs.

While Republicans hold a majority in the Senate, virtually any Senator can put a “hold” on any nominee — for virtually any reason. Green ultimately withdrew his name from consideration when he felt the threat of a Senator’s “hold” would have unfairly deprived the Army of a Secretary indefinitely.

If a Senator had blocked Mark Green from becoming Secretary of the Army because of his religious views, that Senator — acting as the US government — would have been declaring an American citizen unqualified for public office based on his religious views. Even by Ed Brayton’s “clueless” definition, that would be contrary to the US Constitution. Up for debate is whether the Senators who expressed opposition to Green (based on his “views”) even before his confirmation hearing had established a de facto religious test.

Utter nonsense. Let’s try a slightly different example. Let’s say a president nominated a Muslim who believes that the Constitution should be replaced by Sharia law. Would Dowty still believe that if a Senator refused to confirm that nominee because of that religious belief, that would be an unconstitutional religious test? Of course he wouldn’t. But legally, the two situations are precisely the same. A Senator is an elected official and they can choose to reject a nominee for any reason whatsoever without creating a religious test for office.

I’d be willing to be that if you asked Dowty how we should interpret the Constitution, he would probably answer “originalism” (though I doubt he really understands what that means, only that it’s the standard conservative answer to that question). So how would an originalist view the meaning of the No Religious Tests clause? By looking at the historical context, which is that many states had constitutions that required that one be a Christian, a Protestant, a Trinitarian or some similar language, in order to be eligible for public office. The framers of the Constitution said you cannot do that for elections to the national government.

But there is equivocating going on here on the meaning of what it means to be eligible or unqualified. An elected official can say that they won’t vote for someone because they consider their religious views to be disqualifying without advocating that they be legally disqualified. There is a clear distinction between those two meanings of those terms that Dowty wants so badly to conflate.

I have a challenge for Dowty: Find a single legal scholar who agrees with your interpretation. Cite a single legal scholar who agrees that a Senator refusing to vote for a nominee because of their religious views is a violation of the No Religious Tests clause. Good luck with that.

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