By: Sarah Johnson
This week we’ll take a closer look at a recent California bill condemning religious tests for public office. When I first saw this bill in our trending list, I was intrigued. Upon further research, it is a much more intriguing topic relating to our politics, our stance on religion, and the state of our country than I even expected. Let’s dive in!
What is a “Religious Test for Public Office”?
A religious test can take many different forms, but essentially it means ensuring a person has a certain set of beliefs surrounding religion. Such tests can range from making sure someone is a catholic to simply establishing they believe in a higher power to determining someone is an atheist. Article VI of the United States Constitution bans religious tests for federal public office stating,
“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.”
Simply stated, no legislative, executive, or judicial office holder can be required to “pass” a religious test or be required to adhere to or accept any doctrine or religion as a prerequisite to obtaining office or the job. However Article VI only says the federal government can’t apply these tests; state governments still can, and in fact do, usually limiting public offices to Christians or Protestants. Eight states address religious tests directly in their constitution:
- Arkansas, “No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any Court.”
- Maryland, “That no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God.”
- Mississippi, “No person who denies the existence of a Supreme Being shall hold any office in this state.”
- North Carolina, “The following persons shall be disqualified for office: First, any person who shall deny the being of Almighty God.”
- Pennsylvania protects those with religious beliefs but does not address those who do not have a religious belief, “No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth.”
- South Carolina, “No person who denies the existence of the Supreme Being shall hold any office under this Constitution.”
- Tennessee, “No person who denies the being of God, or a future state of rewards and punishments, shall hold any office in the civil department of this state.”
- Texas “No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.”
What Prompted This Bill to be Introduced?
Since the election of Donald Trump, there have been many news stories about Democratic representatives inquiring about people’s religion during one of the many confirmation hearings for public office. As we have learned, no candidate is required to perform a religious test in order for them to hold federal executive or judicial office. Let’s take a look at the biggest news stories.
Mike Pompeo: Republican congressman from Kansas, head of the CIA and Trump’s Secretary of State.
During Pompeo’s confirmation hearing, Senator Cory Booker chose a line of questioning focusing on past statements from Pompeo relating to his views on Muslims and same-sex marriage. Booker said, “You said people who are silent are complicit in those terrorist attacks. Do you think that Muslim Americans in this country who serve in our military, who serve in the State Department, their failure to speak up, is that –are they complicit in terrorist attacks?” Pompeo answered he believes it is an opportunity more than a requirement for Muslim people to speak out because they are “more credible, more trustworthy and have a more shared experience.”
Booker went on to inquire about Pompeo’s views relating to same-sex marriage, asking if he believed being gay was a perversion. Pompeo replied “Senator, when I was a politician, I had a very clear view on whether it was appropriate for two same-sex persons to marry. I stand by that.” Booker responded, “So, you do not believe it’s appropriate for two gay people to marry?” to which Pompeo said, “Senator, I continue to hold that view.”
Russell Vought: Trump’s nominee for deputy director of the Office of Management and Budget
During Vought’s confirmation hearing, Senator Bernie Sanders and Senator Chris Van Hollen brought religious beliefs into their lines of questioning. Sanders brought up an article Vought had published, quoting: “Muslims do not simply have a deficient theology. They do not know God because they have rejected Jesus Christ his Son, and they stand condemned.” He asked Vought if he believed the statement was Islamophobic to which Vought answered, “Absolutely not, Senator. I’m a Christian, and I believe in a Christian set of principles based on my faith.”
Later in the hearing, Senator Cory Gardner made the comment, “I hope that we are not questioning the faith of others, and how they interpret their faith to themselves” to which Senator Chris Van Hollen later responded, “I don’t think anybody was questioning anybody’s faith here.” Van Hollen said it’s “irrefutable” that comments like Vought’s suggest to many that he’s condemning all people who are not Christians.
Amy Coney Barrett: a law professor at the University of Notre Dame, Trump’s nominee to the Seventh Circuit Court of Appeals
During Amy Coney Barrett’s hearing, Senator Dianne Feinstein and Senator Dick Durbin addressed her religion in their lines of questioning. Feinstein said, “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 for years in this country.” Feinstein’s press secretary attempted to clarify her comments, “Professor Barrett has argued that a judge’s faith should affect how they approach certain cases. Based on this, Senator Feinstein questioned her about whether she could separate her personal views from the law, particularly regarding women’s reproductive rights.” Durbin asked Barrett if she considered herself an orthodox Catholic.
Brian Buescher: Trump’s nominee for the United States District Court for the District of Nebraska
During Brian Buescher’s confirmation hearing, Senator Mazie Hirono and Senator Kamala Harris, raised concerns about Buescher’s membership in the Knights of Columbus. Hirono stated the Knights have “taken a number of extreme positions.” She went on to ask if Buescher would end his membership with the Knights of Columbus to avoid “appearance of bias” and recuse himself from “all cases” in which the organization has taken a position. Harris stated during her questioning the organization is “opposed to a woman’s right to choose” and against “marriage equality”. She went on to suggest that Buescher could be unable to give a fair hearing to cases on these issues.
Senator John Kennedy asked William Barr (Trump’s new Attorney General), who is also a member of the Knights of Columbus, if he thought his religion disqualified him from serving in office, stating “some of my colleagues think it might.”
What Does the Bill Say?
There are actually two bills regarding this issue that have made news this year: a US Senate Resolution and the California bill that is the topic of this piece.
US SRes19 is “a resolution expressing the sense of the Senate that disqualifying a nominee to Federal office on the basis of membership in the Knights of Columbus violates the Constitution of the United States”. The Senate resolution states it is “unconstitutional” to consider membership in the Knights of Columbus a disqualifying criteria for public office. The resolution passed by unanimous consent, it went unopposed by Senators of either party.
CA AJR12 is a resolution that censures Kamala Harris and Dianne Feinstein for applying religious tests to Catholic judicial nominees (in aforementioned news stories). The resolution condemns any attempt to disqualify an individual for public office on the basis of their religious beliefs and stands in solidarity with people of all faiths and their rights to pursue public service.
Conclusion
I do not think this issue is an easy open and shut case. Despite the extensive litigation over the constitutional separation between church and state, Article VI has never been questioned and has no judicial decisions.
It is worth exploring what “religious tests” might mean. Does it mean you can’t require someone to be (or not be) a specific religion? Or is the intent that you cannot even ask someone about their religion or past statements they have made relating to their religion and thus how they see the world?
A grand majority of the Senators asked either specifically about past comments nominees made or documented beliefs of organizations they belong to. The Knights of Columbus detail on their website why they are anti-choice, anti-same-sex marriage and pro faithful-citizenship. California Catholic Conference defines faithful citizenship as, “recognizing our dual heritage as both faithful Catholics and citizens in a democratic society. We hold rights and duties, both in participating in the civic order but also as citizens of the heavenly Kingdom. It is as citizens faithful to the Lord Jesus that we contribute most effectively to the civil order.”
Times have changed over the last couple hundred years and I think what the the Framers of the Constitution meant is up for interpretation. I believe Article VI was written to avoid any entanglement between church and state or having the government act as an enforcer of religious beliefs or practices in any way. I do not think that means we can pretend religion can be completely separate and not a part of public serving or that it should never even be discussed in a government setting.
I interpret these two bills to be condemning Senators for asking if nominees believe they can be impartial despite their beliefs. Yet I think that a person’s belief is a valid line of questioning. If a nominee had strongly held beliefs for reasons besides religion, no one would question why it is important for them to recognize their bias and take appropriate actions to ensure it does not impact their conduct. These nominees are being put in incredibly important positions and will be making important decisions potentially affecting all of us so I think specific biases should definitely be something that is addressed in a confirmation hearing.
Far from supporting these bills as I thought I would when I started this piece, I find I think they are wrong, and misinterpret the intention of the founding fathers. Although the California bill contains appealing language like “the Legislature stands in solidarity with people of all faiths and their rights to pursue public service,” I believe that these bills go too far. These bills actually hurt our ability to protect the public from harmful actions perpetrated by our government against vulnerable people, driven by religious belief.
I will conclude with Booker’s final comments when challenging Pompeo because I think Booker’s point summarizes well why I don’t think we should be drawing a hard line against asking a nominee about their religion and how it will inform their conduct:
“I will conclude by saying, sir, you’re going to be secretary of state of the United States at a time that we have an increase in hate speech and hate actions against Jewish-Americans, Muslim-Americans, Indian-Americans; hate acts are on the increase in our nation. You’re going to be representing this country and their values abroad … Your views do matter.”
Cover Photo by Olivia Snow on Unsplash
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