Should religious believers be permitted to serve in the American judiciary?

Should religious believers be permitted to serve in the American judiciary? January 9, 2019


From the National Archives
The Bill of Rights (Wikimedia Commons public domain):  It looks a bit faded, doesn’t it?


“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”


So, in its entirety, reads the First Amendment of the Constitution of the United States of America.


But who cares, really?  Wasn’t it written by dead white males?  Some of our elected elite seem to feel free to ignore it:


“Senators’ bigotry threatens all believers – The left gets closer to stifling public expressions of faith”


“Democratic Congresswoman Calls Out Fellow Democrats for ‘Religious Bigotry’”


And compare this, from the New York Times:


The Dogma of Dianne Feinstein”


Strictly speaking, of course, by effectively barring Catholics, Evangelical Protestants, Orthodox Jews, and Latter-day Saints from appointment to the federal judiciary, Congress woudn’t really be making a law.  Especially if the Senators involved didn’t expressly say that committed members of such groups were prohibited from serving as judges.  The rule could be applied tacitly, on a seemingly ad hoc basis; evidence of unacceptably orthodox views or of too faithful acherence could simply be silently reckoned a fatal defect, justifying the rejection of their nominations.


But then there’s that pesky Article 6, Clause 3, of the Constitution:


“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, 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.”


Interpreted straightforwardly and at face value, this passage’s prohibition of “religious tests” for the holding of public office would seem to suggest that candidates for public office shouldn’t be subjected to religious tests.


Wouldn’t it?


Perhaps I’m just too unsophisticated to grasp how it could be constitutional to bar people, effectively, from appointment to the federal judiciary because they’re devout mainstream Catholics or Evangelical Protestants or Orthodox Jews or even, terrible thought!, members of the Church of Jesus Christ of Latter-day Saints.


We have, though, clearly entered very interesting times, when the faith of literally scores of millions of Americans can be publicly cited as grounds for concern about admitting them to full participation in civic life.  I’ll bet, though, that it won’t disqualify them from paying taxes!



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