Friday, August 7, 2009

Article VI Scholar Blogs on Volokh

[Note: In 2007, I did a few posts on Art. VI, Cl. 3 scholar Paul Horwitz's guest blogging at the Volokh conspiracy; I am going to reproduce them here at American Creation over the next few days.]

Article VI's "no religious test" clause of the US Constitution is much neglected with a dearth of scholarship on its proper meaning. Arguably this clause was a revolutionary (for its time) statement of religious neutrality. Why is this clause so ignored?

Prof. Paul Horwitz, from Southwestern Law School will be blogging this coming week on Volokh. And Eugene already posted Horwitz's main article on the subject.

Horwitz argues for a very strict reading of this clause. When I first read his paper, it struck me as a politically conservative reading of Article VI. However, as with the Free Exercise Clause, narrow or broad readings cut both ways politically. EMPLOYMENT DIV., ORE. DEPT. OF HUMAN RES. v. SMITH seemed on its surface a narrow "conservative" reading of the Free Exercise Clause; indeed it was written by Justice Scalia. However, many religious conservatives vehemently disagree with Justice Scalia's decision in the Smith case. While some secular liberals like Marci Hamilton enthusiastically support it.

In doing research on this issue I found this article by Manuel Miranda, a conservative, arguing contra Horwitz, for a broad reading of Article VI. Horwitz's interpretation is much closer to Cathy Young's or E.J Dionne's in the article.

In Monday's Boston Globe, columnist Cathy Young, also a contributing editor of the libertarian Reason magazine, concludes: "A candidate's or nominee's ideology should be fair game whether it's religious or secular in nature, whether it's rooted in conservative Catholicism or liberal feminism."

More interesting is how Ms. Young gets to this conclusion. While applauding John F. Kennedy's milestone election as the first Catholic president, Ms. Young recites Article VI, but she conflates the religious test clause with the provision that officeholders "shall be bound by oath or affirmation, to support this Constitution." She interprets this to mean that "an officeholder could not be required to take an oath or perform a religious ritual affirming his allegiance to a particular religion or denomination, or even a general belief in God."


In Wednesday's Washington Post ("Why It's Right to Ask About Roberts's Faith"), columnist E.J. Dionne asks: "Is it wrong to question Judge John Roberts on how his Catholic faith might affect his decisions as a Supreme Court justice? Or is it wrong not to? . . . Why is it wrong to ask him to share his reflections with the public?" It would be helpful, Mr. Dionne concludes, "if Roberts gave an account of how (and whether) his religious convictions would affect his decisions as a justice."


Journalists believe that the religious test clause guards against simple discrimination against Catholics or Jews or any other particular denominations. It does not. It prohibits a probe of what the potential officeholder believes derived of his religious convictions. It is not about what he lists on a questionnaire under religion, as if it were like race or sex. That is why the liberal press has mocked the concern raised by conservatives that the abortion litmus test and other lines of inquiry are a constitutionally prohibited religious test. [Bold mine.]

In other words, according to Horwitz, Article VI really does mean only that "an officeholder could not be required to take an oath or perform a religious ritual affirming his allegiance to a particular religion or denomination, or even a general belief in God." And if a liberal Congress wants to probe into Justice Roberts' religious beliefs and vote him down because he, as a conservative Catholic, may be so influenced on the Court, Art. VI provides no constitutional barrier to their so doing.

Yet, such a reading cuts both ways. If a liberal President appointed an insufficiently religious Supreme Court nominee, a religiously conservative Senate could so inquire and refuse to confirm the nominee on that basis.

1 comment:

Explicit Atheist said...

In practice the Supreme Court never has and never will challenge this Congressional prerogative by probing the motivations behind such votes. They will occasionally do such probing as evidence when evaluation their conclusions regarding a law's constitutionality. However, there is no issue regarding whether a nominee is constitutional. I don't think Horowitz's understanding of the no religious oath clause as you describe it should be controversial.