True God of the next justice.

• Author: Sidak, J. Gregory
• Position: Articles - Relevance of the Religious Test Clause to nomination and confirmation of Supreme Court justices

1. INTRODUCTION

   For a decade or more, American constitutional discourse has emitted a detectable odor of bigotry toward Roman Catholics who embrace the papal encyclicals of Pope John Paul II. The day after President George Bush nominated Judge Clarence Thomas to the Supreme Court of the United States in 1991, Virginia Governor Douglas Wilder said that, although the judge was "qualified" to sit on the Court, "he's indicated he's a very devout Catholic, and that issue is before us." (1) The Governor told reporters, "The question is: How much allegiance does [Mr. Thomas] have to the Pope?" (2) At the time, it had been more than three decades since Americans overcame fears of papists in high places to put William Brennan on the Supreme Court (3) and John Kennedy in the White House. (4) Anti-Catholic prejudice has been cited, however, as a factor in Alfred E. Smith's loss to Herbert Hoover in the presidential election of 1928. Arthur Schlesinger has written that "beneath the surface maneuvers of the campaign was the slanderous undercurrent of religious bigotry--whispers that Smith's election would bring the Pope to America, that all Protestant marriages would be annulled and all Protestant children declared bastards." (5)

   The intolerance of Governor Wilder's remarks in 1991 seemed all the more inexplicable because he was the first African American to occupy the governor's mansion in the former capital of the Confederacy, and thus his own electoral achievement testified in some measure to the ability of American democracy to overcome the invidious discrimination of the past. Governor Wilder's remarks caused such indignation that he was forced to retract them the following day. (6) Journalists focused on the possible damage to the governor's political career (7) but overlooked the larger issue: Here was a prominent public official with presidential ambitions who was evidently unaware that Article VI of the Constitution contains the Religious Test Clause, which provides that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." (8) In addition to that provision, the Senate, in the discharge of its Advice and Consent duties, (9) cannot quiz a Supreme Court nominee about his religion as a condition of confirming him, lest the individual senators violate their own oaths "to support this Constitution," (10) an obligation that necessarily includes supporting the Constitution's prohibition against religious tests. Perhaps even more surprising than Governor Wilder's remark was the reaction of Senator Orrin Hatch, a Mormon from Utah and a senior Republican on (and future chairman of) the Senate Judiciary Committee: "I think it's fair to ask if [Judge Thomas's] Catholic faith means he would blindly follow the pope. You can ask the question in a sophisticated way that would be less offensive than what Wilder said, but I don't think he's out of line to raise these questions." (11) Thus, this prominent Republican on the Senate Judiciary Committee seemed as unfamiliar with the Religious Test Clause as did Governor Wilder.

   Despite this evident unfamiliarity of some senior politicians with the Religious Test Clause, it may be regarded as some measure of official toleration of religion that the Supreme Court has never been required to decide a case in which a religious test was required of a national officeholder. As recently as 1961, however, the Court unanimously struck down Maryland's requirement that officeholders declare their belief in the existence of God. Interpreting the Free Exercise Clause and the Establishment Clause, (13) added to the Constitution in 1791 through the First Amendment, Justice Hugo Black wrote for the Court in Torcaso v. Watkins, "We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person `to profess a belief or disbelief in any religion.'" (14) Laurence Tribe, writing in his influential treatise several years before the Thomas nomination, concluded that, "[a]s a practical matter," the Free Exercise and Establishment Clauses "are dispositive in cases challenging alleged `religious tests'" such that the Religious Test Clause of Article VI "is now of little independent significance." (15)

   On narrow, legal grounds Professor Tribe's assessment may be too sanguine in the case of a judicial nomination, for the confirmation or rejection of a nominee would not require Congress to breach the prohibition that "Congress shall make no law" concerning the establishment or free exercise of religion. A confirmation vote (like a legislative chaplaincy) is not the enactment of a law, and thus religious discrimination in the confirmation or rejection of Supreme Court nominees might find a loophole in the First Amendment. More generally, the Wilder imbroglio demonstrated that the development of jurisprudence on the First Amendment's religion clauses should not be taken to obviate an explicit constitutional prohibition of the sort that the Religious Test Clause embodies. Wilder's comments were consistent with Justice Joseph Story's assessment in 1833 that "[t]he framers of the constitution.... knew, that bigotry was unceasingly vigilant in its stratagems, to secure to itself an exclusive ascendancy over the human mind; and that intolerance was ever ready to arm itself with all the terrors of the civil power to exterminate those, who doubted its dogmas, or resisted its infallibility." (16)

   Religion and politics may forever be a volatile mix. In any presidential election, the views of a candidate's likely Supreme Court nominees provide a lively topic for debate. In current times, this controversy is surely due in large measure to the fact that nominations to the Court are seen as the vehicle by which the law and politics of abortion change in the United States. In the 2000 presidential election, for example, Vice President Al Gore said, "Not only a woman's right to choose, but a lot of our individual rights and civil rights are going to be at risk if the Republican Party controls the majority on the Supreme Court for the next 30 or 40 years." (17) In June 2000, the Supreme Court struck down, 5-to-4, in Stenberg v. Carhart Nebraska's prohibition on "partial birth" abortion, and thus produced a new ruling on this controversial subject only weeks before the Democratic and Republican conventions. (18) President Clinton warned on the day of the Carhart ruling that the Supreme Court appointments of his successor would determine whether Roe v. Wade "will either be maintained or overturned." (19) The same day, in the closely watched U.S. senatorial race in New York, candidate Hillary Rodham Clinton stated: "My position is clear: as a member of the United States Senate, I will not vote for a nominee to the Supreme Court who would oppose Roe." (20) She challenged her rival, a Roman Catholic, to take the same pledge. (21) The following week, the New York Times reported on its front page, "Vice President Al Gore, the presumptive Democratic nominee, seized on the close vote [in Carhart] to warn that Mr. Bush, if elected, would appoint conservative Supreme Court justices hostile to abortion rights." (22)

   To be sure, other social issues are swept up in the question of Supreme Court nominations, but none has been so polarizing since the 1970s as abortion. Abortion remains the festering sore of American constitutional discourse. (23) Given that cultural and political dynamic, the religious views of a Supreme Court nominee have become a crude proxy for whether the prospective Justice will vote for or against the perpetuation of a constitutionally protected right to an abortion. (24) The same crude proxy has been employed outside the nomination context as well. In 1995, for example, parties to an abortion rights case in the Ninth Circuit petitioned Circuit Judge John T. Noonan, Jr., a Catholic, to recuse himself on the grounds that his "fervently-held religious beliefs would compromise [his] ability to apply the law." (25) Judge Noonan denied the petition for recusal on the grounds that it would violate the Religious Test Clause. (26) Simply put, investigation of a jurist's personal religious beliefs -- a privacy issue if ever one existed -- has evidently become regarded by many involved in the political discourse as socially justifiable in the defense of, or in opposition to, those constitutional interpretations that have created and extended a woman's right to an abortion. In addition to presenting the quintessential privacy issue under the Constitution, the Religious Test Clause also should be seen as the quintessential example of a rule against unconstitutional conditions. As the Court observed in Torcaso, "The fact ... that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution." (27)

   Some political figures have resisted this intrusion into matters of religious faith. In the Democratic primaries of the 2000 election, Senator Bill Bradley flatly refused to answer any question from reporters concerning his personal religious beliefs. (28) That position, however, is distinguishable from a Supreme Court nominee's, as Senator Bradley had already announced his position on abortion (he was pro-choice), such that a reporter's inquiry into his religious views would be unnecessary to infer his likely views on abortion. Few sitting judges, in contrast, would publicly express views on a subject that would be so controversial and so likely to generate litigation that might come before their courts. To do so might create an appearance of judicial partiality.

   In the remainder of this Essay, I explain that, without the active vigilance of the Senate, the Religious Test Clause is incapable of protecting religious freedom in the face of the intensity of efforts to probe the judicial philosophy of Supreme Court nominees on...