This column by ACRU General Counsel Ken Klukowski was published September 13, 2017 by Breitbart.
There is a growing backlash from adherents of multiple faiths to Senate Democrats’ raising the religious faiths of President Donald Trump’s nominees to determine whether the Senate should confirm them, citing such objections as a flagrant violation of the Constitution’s Religious Test Clause.
Notre Dame law professor, Amy Coney Barrett, is one of President Trump’s picks for the U.S. Court of Appeals for the Seventh Circuit, which has jurisdiction over Indiana, Illinois, and Wisconsin. Last week, the Senate Judiciary Committee held her confirmation hearing for that Chicago-based appeals court.
As Breitbart News and other outlets reported, Sen. Dianne Feinstein (D-CA) — who is the Democratic ranking member on the committee — expressed alarm that Barrett is a devout Catholic, revealing “concern” that Catholic “dogma lives loudly within you.”
Article VI, Clause 3, of the Constitution — indeed, the very last provision of the body of the original Constitution drafted in 1787 and ratified in 1789 — commands that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
In 1961, the Supreme Court in Torcaso v. Watkins held that this prohibition extends through the Constitution’s First and Fourteenth Amendments to state and local governments as well, such that an applicant’s faith can never be used by any government official at the federal, state, or local level to deny that applicant a job in public service.
Later in Barrett’s confirmation hearing, Sen. Dick Durbin (D-IL) asked Barrett to explain what it means to be an “orthodox Catholic,” referring not to the Greek Orthodox or Russian Orthodox variations of Catholicism, but, instead, “orthodox” meaning faithful adherence to centuries-old teachings of the Roman Catholic Church.
Leading Americans from across the ideological spectrum strongly object to these senators’ citing any nominee’s religious faith as a reason to doubt her fitness for public office.
Princeton University President Christopher Eisgruber on Friday sent a sharply critical letter to Feinstein and Senate Judiciary Committee Chairman Chuck Grassley (R-IA). It begins:
I write, as a university president and a constitutional scholar with expertise on religious freedom and judicial appointments, to express concern about questions addressed to Professor Amy Barrett during her confirmation hearings and to urge that the Committee on the Judiciary refrain from interrogating nominees about the religious or spiritual foundations of their jurisprudential views.
“By prohibiting religious tests, the Constitution makes it impermissible to deny any person a national, state or local office on the basis of their religious convictions or lack thereof,” Eisgruber continues, discussing the Religious Test Clause. “Because religious belief is constitutionally irrelevant to the qualifications for a federal judgeship, the Senate should not interrogate any nominee about those beliefs.”
Barrett “and other nominees ought in any event to be evaluated on the basis of their professional ability and jurisprudential philosophy, not their religion,” Eisgruber adds. He concludes by saying that “every Senator and every American should cherish and safeguard vigorously the freedom guaranteed by the inspiring principle set forth in Article VI of the Constitution.”
Also from Princeton, Professor Robby George — one of the nation’s most respected academic scholars and a faithful Catholic — went a step further, tweeting, “This is disgusting. Catholics should not tolerate liberal bigotry a moment longer.”
George adds, “Sen. Feinstein, you’ve shown your true colors. Resign!”
Senators are also weighing in with alarm, pushing back against these evident violations of the Religious Test Clause.
“We settled this in 1787!” an animated Sen. Mike Lee (R-UT) exclaimed on Tuesday to Tucker Carlson on Fox News Channel. “This was part of the original Constitution,” he added, noting the Religious Test Clause was part of the Supreme Law of the Land even before the Bill of Rights — with its First Amendment’s two Religion Clauses — provided additional religious-liberty rights under the constitutional umbrella.
Lee noted that as a Mormon he is part of a religious minority, and so he takes special note of any federal official — including a senator — saying that he or she regards as a “concern” the religious faith of an applicant for any federal job.
The Utah senator also made the point that Sen. Bernie Sanders (I-VT) openly went after Russ Vought — who is evangelical — regarding his belief about the role that faith in Jesus Christ played in securing God’s forgiveness for sin. Sanders opposes Vought’s confirmation.
Like Roman Catholics and Mormons, evangelical Christians are a distinct minority in America and are increasingly discriminated against across the United States for their sincerely held, millennia-old Christian beliefs.
President Trump repeatedly noted the “war on Christianity” during the presidential campaign. Evangelicals, Catholics, and adherents of other traditional mainstream faiths turned out in record numbers to support President Trump’s election last November.