Every citizen of legal age is qualified to serve in government. The Constitution contemplates that we ought to be self-governed by diverse, citizen lawmakers. When senators wag their fingers at nominees and attempt — with not a little incredulity — to claim the moral high ground, our country suffers.
We suffer for several reasons. First among them is that we tolerate what is obviously unconstitutional. Article VI of the U.S. Constitution guarantees that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
The idea behind this constitutional provision is simple: Forcing citizens to adhere to a specific religious ideology — or none at all — violates the rights common to our humanity, rights endowed to us by our Creator. The reigning idea in history was that one must share the ideology of the potentate in order to qualify to serve at his pleasure. This kept a lot of good people from benefiting a country by their contribution to government.
America set that historical notion aside. Article VI is, therefore, a beneficial aberration of history and part of the core idea of what constitutes our grand tradition of freedom and democracy.
And yet, many senators act as if they’ve never heard of Article VI. Listen to the senators in their own words:
- Sen. Dianne Feinstein (D-CA) suggested that the "dogma lives loudly" within Amy Coney Barrett, suggesting that those religious beliefs are "of concern." Meanwhile, Sen. Dick Durbin (D-IL) asked Barrett a question having nothing whatsoever to do with her capacity as a lawyer and potential judge: "Do you consider yourself an orthodox Catholic?" In other words, are you my kind of Catholic or their kind — either way, he should never ask that question of a judicial nominee.
- Sen. Bernie Sanders (I-VT) famously attacked Russell Vought at his confirmation hearing. Remember, President Donald Trump nominated Vought to lead the Office of Management and Budget (OMB). Most people probably do not even know what the OMB does. Rather, they lump it in with the rest of the acronymed bureaucracies in Washington, D.C. Sen. Sanders — sitting on Capitol Hill, in a U.S. Senate hearing room — asked Vought, "In your judgment, do you think that people who are not Christians are going to be condemned?" What does that have to do with management or budgets?!
- Sen. Cory Booker has his own chapter in the annals of bad questions and made-for-TV protestations of nominees. Before he dubbed himself "Spartacus," Sen. Booker roundly mocked Secretary of State nominee Mike Pompeo on Facebook about his religious beliefs.
- More recently, Sen. Booker pursued a line of questions with Neomi Rao, the potential replacement on the U.S. Court of Appeals for the D.C. Circuit for the seat vacated by now-Justice Brett Kavanaugh. He actually asked if Rao believed homosexuality is a sin. Dictionary.com’s first definition for the word "sin" is "transgression of divine law," which is remarkably similar to the definition given by the Westminster Shorter Catechism. In asking a potential judicial nominee to make a theological pronouncement, Sen. Booker may be unwittingly making one of his own.
- Sen. Mazie Hirono (D-HI) defended Sen. Booker from a perplexed Sen. Mike Lee (R-UT), who wondered aloud, "I can’t fathom a circumstance in which it’s ever appropriate for us to ask a nominee about his or her religious beliefs about whether X, Y or Z is a sin." Lee then had to remind Sen. Hirono of Sen. Booker’s actual question about sin when Hirono shot back, "It is not that we all ask 'do you think such and such is a sin, etc., etc.'"
- Sen. Sheldon Whitehouse (D-RI) didn’t ask Judge Trevor McFadden about his religious beliefs. He asked about comments McFadden’s pastor had made.
- Sen. Kamala Harris (D-CA) asked Judge Peter Phipps to explain his membership in the Knights of Columbus and whether his membership in that religious organization would conflict with his job as a jurist.
Yes. These were real questions, actually asked by duly elected United States senators. Sadly, most of the distracted nation yawned and kept scrolling down their social media feeds.
The effect of these questions, coupled with scorched-Earth confirmation hearings like what the country witnessed with Justice Kavanaugh, will be to drive good people away from being willing to even be nominated, much less to serve.
Actually, it’s worse than that. These kinds of questions have a nasty habit of turning into imperatives. They become standards of disqualification. Dare to associate with the religious or profess a belief about eternity in a college exam — or associate in any way with those who do — and you are automatically blacklisted from public office.
You failed the religious test for office.
But, there is a simple solution. Sadly, no one has ever deployed it and Washington-as-usual probably routinely recommends against it. Still, the time may have come to deploy it.
The next time Sen. Booker asks about the definition of sin or Sen. Whitehouse questions comments made by a nominee’s pastor, the nominee is entirely within rights to respond, "Senator, the question is impermissible because it asserts a religious test for office, in violation of Article VI of the U.S. Constitution."
The Framers of the Constitution understood the importance of keeping the halls of government open to an ideological variety of Americans. That’s why Article VI exists — even if senators choose to ignore it.
Jeremy Dys is Deputy General Counsel for First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all Americans. Read more at FirstLiberty.org.