The US Constitution (Article VI, Clause 3) says (emphasis mine):
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.
Which makes you wonder why some US Senators, when asked whether they would vote to confirm an atheist to the Supreme Court, answered like this:
Sen. James Inhofe (R.-Okla.): No, I would not. To me, that totally contradicts everything that this country is founded on—including our Constitution, including our original oaths of office. Back in the colonial days, the whole purpose that people came here and lost their lives was to achieve the freedoms, of which the major freedom is freedom to love your Lord.
Sen. Zell Miller (D.-Ga.): Nope.
Sen. Don Nickles (R.-Okla.): I don’t think so. Is there one coming? I don’t think so. No, I wouldn’t.
A few Senators seem to have read up on their Constitutional law, of course.
Sen. Ben Nelson (D.-Neb.): I don’t know that I’ve ever thought about that, quite frankly. I deal with each nominee as the nominee comes up, and I don’t start with any pre-conceived notions about them, other than that I want to know that they don’t have an agenda going into the nomination process or if appointed. So I have to know more about the person than about that.
Sen. Orrin Hatch (R.-Utah): I think that it would be very hard to get an atheist through the system. But if the atheist was willing to abide by the law and really literally willing to do what’s right—you know, it would depend on what his attitude is about the law, what his attitude is about other people’s rights, what his attitude is about religious rights. . . . If that all fell together, sure.
We have some very decent atheists who respect the rights of others and who respect the rights of religion. So it depends on the person. It depends on . . . whether they’re in the mainstream of the law, whether they are honest and decent people. There are a hundred factors. Have to have good temperament and a hundred-and-one other things.
Sen. Robert Bennett (R.-Utah): Sure. I don’t think that a person’s religion, one way or the other, should be a disqualifying situation. There should be no religious test for national office. That should be very clear.
And then there’s the worst of both worlds, the wafflers.
Sen. John McCain (R.-Ariz.): I don’t know, I’ve never contemplated such a thing, but I would—I don’t believe so, but I’ve never thought about it. I think the possibility of President Bush nominating an atheist is less than zero.
Sen. Jon Kyl (R.-Ariz.): Well, I suppose it all depends. If a Clarence Thomas were nominated who embodies all of the characteristics of Clarence Thomas except his Christianity, but was very firm in his other beliefs, I might well. By the way, that’s an impossibility, but—
Sen. Tim Johnson (D.-S.D.): Ah, that’s a hypothetical issue. I don’t—I have no answer.
(via Plum Crazy)
Scary and sad. Yet, unsurprising.
Who would of thought that Orrin Hatch would be the sane and reasonable one of the bunch?!?
You missed Robert Bennett. He said “sure” right away.
(That was to Boulder Dude.)
Yeah. Some surprising answers there.
My bad…Missed the Robert Bennett one. Though the scariest answer was the one given by John Kyl (R-ARI)…
Why was Kyl’s response scary?
That Clarence Thomas is his ideal Nominee to the Supreme Court. I mean, how many Clueless, Gameboy playing, Scalia clones do we really need?
And people wonder why I consider myself a member of a minority. Substitute a member of any other group eligible for the position, and you probably wouldn’t receive a single negative comment. Well, except maybe for “a Pauly Shore fan.”
Let’s flip this thing on its head for a second. Antonin Scalia is a Catholic. His Catholicism causes him to believe in Natural Law. This belief causes him to be a strict constructionist. Does opposing Justice Scalia on the basis of his strict constructionism constitute a religious test?
The conservatives are now cheering, but hold on a second. Let’s change the scenario slightly. What if another Catholic jurist opposes capital punishment on religous grounds. Does opposing him because of his opposition to the death penalty constitute a religious test?
People by and large are opposed not because of their religious beliefs (or lack thereof) but because of the legal theories they hold that are a consequence of their religious beliefs. So, if you REALLY think that you cannot bounce someone as a consequence of a religious belief, then ALL litmus tests, conservative, liberal or moderate are facially unconstitutional.
Good point, Rich. Religion, morality, beliefs about where rights derive, how the universe works, all of these personal and subjective beliefs reflect on judicial approaches and opinions.
My problem with litmus tests (as attractive as they sometimes are for issues I feel strongly about, of course) is that they are symptoms, not underlying conditions. Knowing that someone is pro- (or anti-) Roe tells you about that particular case, but it doesn’t tell you why or how that decision was made, and it doesn’t necessarily tell you how they will rule on a different case.
Someone’s morality and intellect informs their judicial decisions (one hopes). Religion is a part of that. Of course, someone may oppose capital punishment for a variety of reasons; using capital punishment as a litmus test doesn’t necessarily mean one is, for example, anti-Catholic, per se (especially since there are Catholics who are not anti-capital punishment).
Opposing someone explicitly because they are Catholic — whether or not that’s based on the belief that all Catholics are anti-capital punishment — would clearly be a religious test. (It would also, of course, be terribly unwise for a confirming senator to actually admit that, for a variety of reasons.)