INTRODUCTION I. THE CONSTITUTIONALITY OF RELIGIOUSLY MOTIVATED VOTING BY INDIVIDUAL CONGRESSIONAL ACTORS A. The Religious Test Clause B. Tests for Determining Violations of the Religion Clauses, their Underlying Norms, and their Application to Faith-Based Conditions to Public Service 1. Doctrinal Tests and Frameworks a. Establishment Clause Doctrine b. Free Exercise Doctrine 2. Foundational Norms of the Religion Clauses a. Neutrality b. Separation c. Promotion of Religious Liberty 3. Application to Faith-Based Conditions Public Service C. The Speech or Debate Clause D. Application of Constitutional Authorities the Sanders-Vought Matter and Similar Scenarios II. EVANGELICALS AND PUBLIC SERVICE A. Evangelicalism and Basic Soteriological Concepts in Evangelical Theology B. Implications of Evangelicalism for Public Servants 1. The Question of Mutual Exclusivity 2. The Question of Tolerance 3. The Question of Offensiveness III. CONCLUSION INTRODUCTION
Picture this scene: The year is 2025, and the occasion, judicial confirmation hearings by the United States Senate's Committee on the Judiciary. A newly elected president has just nominated an accomplished, mid-career law professor to serve as the next Associate Justice of the United States Supreme Court. The nominee is brilliant. He is also Muslim. After responding to a predictable line of questioning from several stoic United States senators, the nominee faces the following inquisition from a brash, politically ambitious senator from Texas:
Professor, I have letters from the Independent-Fundamentalist-Triple Predestination-Post-Millennial Churches of America and the Greater Zionist-Expansionist-Ultra-Orthodox Cooperation of Jewish Congregations of the United States opposing your nomination to serve on the Supreme Court. The organizations take exception to your recent blog post directed towards the governing board of a private Muslim school reevaluating its statement of faith, a blog post in which you insist upon adherence to what you describe as historic Islamic belief. In particular, you state in the blog entry that you fully embrace the first pillar of Islam, that "there is no god but Allah, and Muhammad is his prophet." You further affirm the Quranic assertion that Jesus Christ actually did not die from crucifixion, let alone bodily rise from the dead. Your blog urges the Muslim school to strictly teach this traditional Islamic doctrine and tolerate no faculty dissent from it. Professor, do you understand that your public views have marginalized the millions of Americans, both Jews and Christians, who worship not Allah but YHWH? And do you appreciate, professor, that in the minds of a great number of Christian Americans, if Jesus did not die for the sins of the world and arise in victory over sin and death, their faith is utterly pointless? Do you, sir, maintain that Jews and Christians lack an accurate knowledge of God and how to worship God? And would you still today denigrate the most fundamental beliefs of millions of our citizens? Fellow members of the committee, I do not believe that this law professor represents what this country is supposed to be about. Therefore, I oppose his nomination. Until recent days, this account of anti-religious acerbity by a United States senator would have sounded like the fanciful tale of a political satirist rather than a bona fide journalistic report. (1) But on June 7, 2017, fiction became fact. Only the minor details of the historic exchange differ from those of the hypothetical narrative. The real hearing occurred before the United States Senate Committee on the Budget. (2) The business before the committee was the nomination of Russell Vought for Deputy Director of the White House Office of Management and Budget ("OMB"). (3) The nominee's religious beliefs on trial were not Islamic, but Christian. And leading the charge against the nominee was a senator who hails not from Texas, but from Vermont--former presidential candidate Bernie Sanders.
Senator Sanders began his interrogation of Mr. Vought by reading into the record a letter from three organizations expressing concerns over Mr. Vought's religious views. (4) After briefly questioning Mr. Vought on what were characterized as "budget matters," (5) Senator Sanders extensively probed the theological views that Vought had advanced in an opinion piece concerning an episode at Wheaton College. The full exchange (6) between Sanders and Vought on the latter's theology is as follows:
Senator SANDERS. Let me get to this issue that has bothered me and bothered many other people, and that is in the piece that I referred to that you wrote for a publication called Resurgent. You wrote: "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."
Do you believe that that statement is Islamophobic?
Mr. VOUGHT. Absolutely not, Senator. I am a Christian, and I believe in a Christian set of principles based on my faith. That post, as I stated in the questionnaire to this committee, was to defend my alma mater, Wheaton College, a Christian school that has a statement of faith that includes the centrality of Jesus Christ for salvation, and--
Senator SANDERS. Again, I apologize. Forgive me. We just do not have a lot of time. Do you believe that people in the Muslim religion stand condemned? Is that your view?
Mr. VOUGHT. Again, Senator, I am a Christian, and I wrote that piece--
Senator SANDERS. Well, what does that say Mr. VOUGHT [continuing]. In accordance with the statement of faith of Wheaton College.
Senator SANDERS. I understand that. I do not know how many Muslims there are in America. I really do not know, probably a couple million. Are you suggesting that all of those people stand condemned? What about Jews? Do they stand condemned, too?
Mr. VOUGHT. Senator, I'm a Christian. I--
Senator SANDERS: 1 understand you are a Christian, but this country is made up of people who are not just--I understand that Christianity is the majority religion, but there are other people of different religions in this country and around the world. In your judgment, do you think that people who are not Christians are going to be condemned?
Mr. VOUGHT: Thank you for probing on that question. As a Christian, I believe that all individuals are made in the image of God and are worthy of dignity and respect regardless of their religious beliefs. I believe that as a Christian that is how I should treat all individuals--
Senator SANDERS. And do you think your statement that you put into that publication, "they do not know God because they rejected Jesus Christ, His Son, and that they stand condemned," do you think that's respectful of other religions?
Mr. VOUGHT. Senator, 1 wrote a post based on being a Christian and attending a Christian school that has a statement of faith that speaks clearly with regard to the centrality of Jesus Christ in salvation.
Senator SANDERS: I would simply say, Mr. Chairman, that this nominee is really not someone who is what this country is supposed to be about. I will vote no. (7)
Senator Sanders's interrogation of Mr. Vought followed the former's opening statement to the committee, in which he opined that Vought's expressed theological position "is indefensible, it is hateful, it is Islamophobic, and it is an insult to over a billion Muslims throughout the world." (8) He again characterized Vought's defense of Wheaton as containing "strong Islamophobic language," and remarked that "racism and bigotry cannot be part of any public policy" in a democracy. (9)
After Senator Sanders questioned and denounced Mr. Vought, Senator Cory Gardner cautioned, "I hope that we are not questioning the faith of others and how they interpret their faith to themselves." (10) In response to Gardner's concern, Senator Chris Van Hollen opined, "I don't think anybody was questioning anybody's faith here. I think the issue that Senator Sanders was raising was whether the nominee was questioning the faith of others." (11) Senator Van Hollen then suggested that there was some (unstated) link between the "public trust for the whole country" and Vought's theology. (12) Van Hollen interjected his personal theological views into the committee's deliberations before referring again to the "public trust":
I am a Christian, but part of being a Christian, in my view, is recognizing that there are lots of ways that people can pursue their God. So no one is questioning your faith, Mr. Chairman. It is your comments that suggest a violation of the public trust in what will be a very important position. (13) The context of Mr. Vought's expression of religious belief that so plainly offended Senator Sanders was his defense of Wheaton College, his alma mater. Like Vought, Wheaton College embraces evangelical theology. Considered by some to be the "Harvard of evangelicalism," (14) Wheaton College has adopted a Statement of Faith that begins as follows:
The doctrinal statement of Wheaton College, reaffirmed annually by its Board of Trustees, faculty, and staff, provides a summary of biblical doctrine that is consonant with evangelical Christianity. The statement accordingly reaffirms salient features of the historic Christian creeds, thereby identifying the College not only with the Scriptures but also with the reformers and the evangelical movement of recent years. The statement also defines the biblical perspective which informs a Wheaton education. These doctrines of the church cast light on the study of nature and man, as well as on man's culture. (15) In an effort to remain true to its institutional mission and Statement of Faith, Wheaton suspended a Christian political science professor, Dr. Larycia Hawkins, who had publicly opined that Christians and Muslims worship the same God. (16) Vought wrote to support the college in its response to the matter. (17) In an article that appeared in The Resurgent, Vought...