Dems, drop your unconstitutional and un-American religious tests

Former Vice President Joe Biden recently offered these valid words of inspiration: “While the United States is far from perfect, we have never given up the struggle to grow closer to the ideals in our founding documents”

What is entirely missing from his op-ed advocating for reclaiming America’s values, however, is any recognition that leaders of his own Democratic Party are marching in a direction that would take us all ever farther from those ideals.

{mosads}Article VI of our Constitution provides: “[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Moreover, when the Founders decided to add a Bill of Rights to the Constitution, the First Amendment, the one that preceded all the others, guaranteed the free exercise of religion. And that protection of religious conscience was the very first protection — even before freedom of speech or of the press — granted in the Amendment.

Nevertheless, leading Democratic politicians have directly and repeatedly attacked our constitutionally-enshrined traditions of freedom of religious conscience and rejection of religious tests.

I have already written about Sen. Bernie Sanders’ (I-Vt.) attack on President Trump’s nominee to be deputy director of the Office of Management and Budget. (Sanders is, we know, not currently registered as a Democrat, but he ran as one in the primaries, and he certainly has a wide following in the party.)

Just to recap: the target of Sanders’ disapproval last June was a nominee named Russell Vought. As a private citizen, Vought had written that his Christian faith led him to believe that Muslims, who have rejected Jesus Christ as the Son of God, “stand condemned.”

Vought testified at his Senate confirmation hearing that his private religious beliefs would not in any way affect his performance as deputy director of O.M.B. (How could they? The OMB is basically a numbers-crunching outfit; two plus two still equals four, whatever your religious beliefs are.)

But, that was not enough to satisfy Sanders. He said that the nominee’s private religious beliefs amounted to “Islamophobia,” and therefore: “[T]his nominee is really not someone who is what this country is supposed to be about. I will vote no.” And that’s what he did.

Now we come to this month’s Senate Judiciary Committee hearing on the confirmation of Notre Dame Law Prof. Amy Barrett, who has been nominated to serve on the U.S. Court of Appeals for the 7^th Circuit. Barrett has written publicly of her faith as a Roman Catholic.

She has also written that a Catholic judge might have to recuse herself — that is, decline from hearing or deciding a case — if the legal result might conflict with her religious beliefs. Barrett’s position is a perfectly conventional and reasonable one — it is not unusual for judges to recuse themselves from hearing particular cases. But Sens. Diane Feinstein (D-Calif.) and Dick Durban (D-Ill.) were not at all satisfied.

Feinstein said: “[D]ogma and law are two different things… [I]n your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for years in this country.”

Of course, two very prominent “big issues” Feinstein hints at but never mentions are abortion and same-sex marriage. The senator is concerned that a Barrett, as a Roman Catholic, might not be as willing as she should be to follow established Supreme Court precedent on these issues.

But Barrett addressed this issue directly in her testimony. She said: “Were I confirmed as a judge, I would decide cases according to the rule of law beginning to end. In the rare circumstance that might ever arise…, where I felt some contentious objection to the law, I would recuse. I would never impose my own personal convictions upon the law.”

If that isn’t enough to satisfy Feinstein, then the senator should publicly announce that, Article VI be damned, she’s going to impose a religious test on judicial nominees. That would be the intellectually honest thing to do.

Durbin provided another startling interlude. He first proudly identified himself as “a product of nineteen years of Catholic education.” He then went on to question whether Barrett’s own Catholic faith might make it difficult for her, as a Court of Appeals judge, to give proper weight to the Supreme Court’s decision in Obergefell v. Hodges, which requires every State to permit and recognize same-sex marriages.

The irony here is that Durbin was apparently blind to the fact that his own public record, which strongly supports same-sex marriage and virtually every other policy favored by the LGBTQ community, proves that those in public office are fully able to discharge their duties in a way that is unaffected by any dogma their religion might endorse. If Durbin is able to take positions and cast votes without being shackled to Catholic dogma, why couldn’t a Barrett do the same?

Joe Biden exhorts us to “struggle to grow closer to the ideals in our founding documents.” That is a noble sentiment. He would do well to begin by informing his Democratic colleagues that it is both unconstitutional and un-American to impose religious tests on government officials.

David E. Weisberg is an attorney and a member of the New York State bar. His scholarly papers on constitutional law are published on the Social Science Research Network.