Explainer  Religious Liberty  Supreme Court

Explainer: What you should know about religious tests for public office

Recent media coverage and statements by public figures about Judge Amy Coney Barrett, a federal judge being considered for the Supreme Court, have raised concerns of a religious test being applied to judicial candidates who are associated with Christian groups. 

For example, Newsweek published a piece with the title, “How Charismatic Catholic Groups Like Amy Coney Barrett’s People of Praise Inspired ‘The Handmaid’s Tale.’” (The reference was to Margart Atwood’s The Handmaid’s Tale, the 1985 dystopian novel about women who are enslaved by quasi-Christian theocrats.) Newsweek later issued a correction stating, “The book’s author, Margaret Atwood, has never specifically mentioned the group as being the inspiration for her work,” but has not retracted the misleading article.

Similarly, the wire service Reuter’s published an article that was originally titled, “Handmaid’s Tale? U.S. Supreme Court candidate’s religious community under scrutiny.” The article claims that Barrett was an unconfirmed member of People of Praise, a “charismatic, ecumenical and covenant community” that includes “Roman Catholics, Lutherans, Methodists, Episcopalians, Presbyterians, Baptists, Pentecostals and other denominational and nondenominational Christians.”

Reuter’s also points out that from 1970 to 2016, People of Praise used the term “handmaiden” for women leaders. The group said the term handmaid was used by the group to mirror Jesus’s mother Mary, who called herself “the handmaid of the Lord” (Luke 1:38, NAB). The group also said in 2018 they stopped using “handmaiden” because “the meaning of this term has shifted dramatically in our culture in recent years.”

What is a religious test?

A religious test is a requirement that to hold public office a person must either hold or reject a particular set of religious beliefs or must be formally affiliated with a particular religious group. Religious tests are used to secure the bond between the state and a particular religion and to prohibit anyone not associated with that religion from holding political office.

For example, religious tests were used in England to “establish” the Church of England as an official national church. As Alan E. Brownstein and Jud Campbell explain, the Test Acts, in force from the 1660s until the 1820s, required all government officials to take an oath disclaiming the Catholic doctrine of transubstantiation and affirming the Church of England’s teachings about receiving the sacrament. These laws effectively excluded Catholics and members of dissenting Protestant sects (such as Baptists) from exercising political power. 

Are religious tests legal?

No, religious tests are unconstitutional. In the only explicit reference to religion in the U.S. Constitution, Article VI, Clause 3 states, “. . . no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” This clause explicitly bans any religious requirement to hold federal office.

Unlike most parts of the Bill of Rights, the Supreme Court has never held that the Clause applies to state as well as federal office-holding under the 14th Amendment. Indeed, it wasn’t until 1961 that the court struck down religious tests applied by the states.

At that time, the Maryland state constitution said, “[N]o 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. . . .” Roy R. Torcaso was appointed to the office of Notary Public by the governor of Maryland, but he could not receive his commission to serve because he would not declare his belief in God. Torcaso filed a lawsuit claiming the requirement violated his rights under the First and 14th Amendments. 

In the case of Torcaso v. Watkins, the U.S Supreme Court unanimously declared that the test was an unconstitutional encroachment on the freedom of religion since it effectively aided religions that profess a belief in God at the expense of any other form of belief or disbelief.

In another case, McDaniel v. Paty (1978), the Supreme Court relied on the First Amendment to strike down state laws prohibiting clergy from holding office. The court ruled that the government’s forcing a person to choose between one’s religious beliefs and the desire to seek office was an unconstitutional restriction on the free exercise of religion.

Why can’t religious tests be applied indirectly?

In 2017, Barrett was appointed a judge on the 7th Circuit Court of Appeals. In her confirmation hearing, California Sen. Diana Feinstein implied that Barrett couldn’t be trusted to apply the Constitution and laws objectively because she was a believing Catholic

“Why is it that so many of us on this side have this very uncomfortable feeling that dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different,” Feinstein said. “And I think in 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.”

Numerous legal scholars condemned Feinstein for her indirectly applying a religious test as a requirement for the federal judiciary. The reason this is wrong, as Gerard V. Bradley, a professor of constitutional law at Notre Dame, explains

The scope of anyone’s immunity from disqualification from office on religious bases now depends upon the meaning of the Establishment and Free Exercise of Religion Clauses, not upon Article VI. At present, the central rule enunciated by the Supreme Court for Establishment Clause jurisprudence is the “endorsement” test. It stipulates all public authority—from state and federal to the most local municipal body—must never do or say anything that a reasonable person could understand to be an “endorsement” of religion, i.e., that favors adherents over non-adherents. Nothing in the neighborhood of a religious test for office could survive application of this norm.

Shouldn’t religious beliefs be excluded from public policy?

Some Americans contend that the religious beliefs of elected or appointed officials are to be excluded from having any influence. For example, they claim that since the religious beliefs of Catholic jurists shape how they decide on the legality of abortion, it is legitimate to exclude faithful Catholics from the judiciary if, as Feinstein might say, “the dogma lives loudly” within them. 

The underlying assumption is that there are certain beliefs that are accessible to a majority, if not all people, through publically accessible reason. These are legitimate, while more narrow beliefs—based on such things as religion—are illegitimate because they are not considered publicly accessible and held by a broad majority of citizens.

This is a key premise in the argument for secular neutrality in law and public policy, which requires that all religious beliefs be checked before entering the public square. Ironically, the result is that certain religious beliefs (e.g., those that are reductionist and based on materialism) are welcomed while others (any religion that relies both on general and special revelation) are excluded.

However, even though such beliefs are openly excluded, they are still allowed to smuggle in the beliefs that the secular neutralists cannot derive from their own religious beliefs (e.g., atheists who are also materialists don’t have any basis for natural human rights, and so must borrow presuppositions from the theistic religions).

This is not to say that all religiously based arguments are legitimate or that they deserve preferential treatment in matters of law and public policy. However, to believe that religious beliefs should be excluded from the public square because they are religious is itself a belief rooted in a religious belief (i.e., a presumption of agnosticism). Since this argument is based on neither reason nor reality, there is no reason Christians should accept the myth of secular neutrality. 

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