One of the interesting aspects of this election season is intense focus on the scope of Article Six’s prohibition of a “religious test” for candidates. The full text reads:
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.
The scope of Article Six, however, is highly debatable. Some scholars contend that it is broad enough to include reasons for voting for a particular individual (that is, the “religious test” includes the ballot box). Paul Horwitz, however, has argued judiciously (and persuasively) that the scope of Article Six is much more narrow. He writes:
The Clause applies to a narrow set of circumstances in which government requires a nominee formally to swear his allegiance to particular faiths or faith propositions, or to disavow that allegiance. It does nothing more. Thus, nothing in the Religious Test Clause ultimately prevents the use of religion in the kinds of statements and actions by various politicians and others that we have seen in the past few years in the context of judicial nominations, whether in opposition to or in support of those nominations. However treacherous the waters we must navigate when we invoke religion in the course of judicial nominations, the Religious Test Clause offers us no beacon.
Horwitz summarizes his argument for this interpretation here. To be blunt, I find the argument decisive. Not only do the historical conditions point to his interpretation, but as Horwitz points out in his paper, the grammar of the entire clause suggests that “religious test” is conceptually dependant upon the “oath or affirmation” to uphold the constitution. In addition, the restriction of the “religious test” exclusion to the Federal level further reinforces the contrast with the “oath or affirmation” that is required at every level of government.
Ironically, Horowitz’s argument implies that conservatives–who care about “originalist” interpretations of the Constitution–are acting “unconservatively” in their use of Article Six to prohibit questions of a religious nature for federal candidates (including Supreme Court justices).
The Clause prevents the formal imposition of true religious tests as a precondition to the assumption of public office. But it does not, as a matter of text, history, or sound policy, prohibit inquiries about a nominee’s beliefs on issues likely to come before the federal courts, or inquiries into his faith as a means of ferreting out those views. Nor, certainly, does it prohibit inquiries designed to smoke out whether a nominee with deeply held beliefs – religious or otherwise – can nevertheless faithfully apply the applicable law. None of these inquiries amount to a requirement that a nominee literally pledge his allegiance to a particular faith or a particular set of religious doctrines. It is true that such inquiries would require the nominee to answer under oath, and a central feature of the Religious Test Clause is its relationship to oaths. But such inquiries would not amount to a literal requirement that a nominee subscribe to a particular faith or faith tenet, under penalty of extratemporal punishment.
Horowitz is careful to point out that the absence of a prohibition in the Constitution does not entail that people should ask such questions. Voting for someone for religious reasons is not unconstitutional–the double negative is intentional–but it may not be appropriate.
Ultimately, we should care not only about our conclusions, but our roads to those conclusions. Conservatives would do well to remain consistent and interpret Article Six according to our preferred method of interpretation–originalism–even if it means eliminating one of our favorite arguments for helping our preferred justices reach the bench.