Religious Questions: Relevant, Legitimate, and Impossible


Paul Horwitz

For the writer on law and religion, the “religious test” question is a gift that keeps on giving. Over two centuries after we enshrined the rule against religious tests as a “Qualification to any Office or public Trust under the United States” — and, arguably, decades if not more after the Religious Test Clause had ceased to be a much-needed and hard-working clause of the Constitution and become more of a relic — questions about the religion of candidates or nominees for public office continue to be raised. In some ways, if anything, religious questions about potential office-holders have been raised in the past few decades at a faster pace and in fiercer terms than had been the case for some time. The Religious Test Clause is dead or moribund, we might say; long live the Religious Test Clause. 

It is in the seeming tension between these two assertions — that the Religious Test Clause as a constitutional provision is more residual than important these days, and that religious questions about putative office-holders are at least as urgent as they have been in some time, if not more — that we might approach the latest such controversy, over the nomination of Amy Coney Barrett to the United States Supreme Court. 

I would like to make two suggestions here. First, despite the rhetoric of some of her supporters, those who suggest that the Religious Test Clause bars any religious questions about Judge Barrett and her views are wrong. That is not a bad thing; religious questions can, in theory at least, be sensible things. Second, precisely because of the rhetoric of those who actually raise or insinuate religious questions, whether in opposition to her or in her support, we should avoid them like (pardon the expression) the plague. That is, in a sense, a bad thing. It means that the level of public discourse around religion — and not just religion — and the religious literacy of our representatives and of the public itself is so impoverished that we are virtually incapable of asking such questions. 

To understand the core meaning of the Religious Test Clause itself, we must understand why it was needed. At the time of the drafting and ratification of the Constitution, religious establishments were widespread and religious tests were one of the gateways that guarded them. The Test Act of 1672, for example, required anyone holding a public office to take an oath rejecting transubstantiation. In 1789, five states in the new union required office-holders to swear a belief in certain articles of Christian faith, while a sixth made clear that Catholics were not welcome in office. 

The Religious Test Clause ensured that a religion or religious belief could not be a formal and absolute requirement (or disqualification) for federal office. It did not say that a person’s religious beliefs could never be considered in deciding whom to confirm or reject for appointment to such an office.

The Religious Test Clause was designed to prevent this from happening at the federal level. It is no accident that the clause follows the requirement that all legislators and judges and executive officers, state and federal be bound, “by oath or affirmation, to support this Constitution.” Oaths were (and in a better world still would be) serious business — “When a man takes an oath,” Thomas More says in Robert Bolt’s A Man for All Seasons, “he’s holding his own self in his own hands” — and the very device by which establishments defended themselves against interlopers. Read together, the text makes clear that office-holding requires a solemn and absolute personal commitment to the Constitution — and only that. Not only is religion forbidden to be an absolute barrier: even the inability for religious reasons to take an oath is respected. 

The Religious Test Clause ensured that a religion or religious belief could not be a formal and absolute requirement (or disqualification) for federal office. It did not say that a person’s religious beliefs could never be considered in deciding whom to confirm or reject for appointment to such an office. Nor could it, in any sensible world. Consider a president choosing between two prospects for appointment as Secretary of the Interior. One of them believes for religious reasons that Judgment Day, which is to be devoutly hoped for and hastened if possible, will occur when God’s creation has been stripped bare. The Constitution prevents us from legislating against this possibility by requiring anyone entering into that office to take an oath forswearing allegiance to that religious belief. But it hardly prevents the president — or the members of the Senate, should that person be nominated — from wondering whether this is the right person for the job. At that level, asking a “religious” question is as much a matter of taking religion seriously and respectfully as it is one of contempt. We may agree or disagree with the belief, but by worrying about it, we suppose that it matters to the person who believes it. 

To be sure, the idea or ideas that we see as lying behind the Religious Test Clause can be read to have greater application than the mere imposition of formal, oath-bound tests for office, and we have read them more broadly. But the Religious Test Clause itself does not do the work in those cases. One may wonder why it does so “little,” and assume it must do much more than that. But that is because we are — thankfully — a long way from the day of formal religious tests. The Religious Test Clause is one important reason for that. In a sense, as I once wrote, if it now seems to do little, it is a victim of its own success. We should be glad. But we should not revive it by invoking it casually — and strategically — every time a nominee is asked pertinent questions about how his or her faith will affect his or her conduct in office.

We should not, then, reject “religious questions” tout court, even if we reject the enshrinement of formal religiously based disqualifications for office. Of course those questions may be relevant. But are we capable of asking them? That’s another matter entirely. Faith is complex, and so are human beings, in this as in every other area of life. At the macro level, faiths change: in their specific doctrines, in the way those doctrines are understood, and in the ways they are understood to apply to particular questions. At an intermediate level, the same faith may be understood or practiced in different ways in different cultures and nations with different traditions. 

 Faith is complex, and so are human beings, in this as in every other area of life.

And we individuals are yet more complex. People live their faiths — or ideologies, or deep personal commitments — seriously, but not necessarily absolutely or linearly. They dissent; they negotiate; they reconcile; they live with some measure of conflict or cognitive dissonance. Sometimes, consciously or otherwise, they simply fail to live up to commitments they continue to believe in and take seriously. Most of the time, they find a way to live in and among different strong commitments — to faith, to country, to profession, to family and other personal loyalties — that may sit together uneasily. They believe in serving the poor but not, on the evidence, in selling their brownstone in Carroll Gardens and donating the proceeds. They firmly believe that no price is too high to pay to fight injustice, and believe just as firmly that if a client perjures himself to beat a charge of stealing a loaf of bread to feed his family, they cannot help and may be forced to withdraw as his lawyer. Let someone else decide if that makes such a person a good or bad religionist, a good or bad follower of some philosophy, a decent sort or a hypocrite. From my vantage point, they simply look human. 

People live their faiths — or ideologies, or deep personal commitments — seriously, but not necessarily absolutely or linearly. They dissent; they negotiate; they reconcile; they live with some measure of conflict or cognitive dissonance.

One might think we would understand all this well, not only because we all share the same fallen and imperfect condition, but also because this is still a highly religious country — and, perforce, one in which many or most of us (including the non-religious) live with tensions and imperfections in how we carry out our beliefs and reconcile them with other aspects of our lives. Perhaps we do, in private. But even those of us who are willing to bring that understanding into public life and discourse may lack the language, or the knowledge of some other faith (or even our own), that would enable us to discuss these subtle questions and nuanced distinctions. And many are not willing. Whatever self-examination might reveal to us about others, in public debate we are ready to find hypocrisy instead of complexity and deceit instead of uncertainty. Although we know that life as an individual American Catholic, or Jew, or socialist, involves difficult negotiations, we are happy to apply the most wooden interpretations to the sacred texts of others and wield them for gotcha points. To be clear, this can apply to other forms of commitment and other sources of conscience. It is not unique to religious belief. It may not even be uniquely offensive. But it is at least wholly characteristic of public discourse around religion that we bungle the job — often, no doubt, not accidentally and in good faith, the bungling is quite deliberate and strategic. Indeed, if we end up not seeing such bungled questions this time around — if senators avoid asking about religion altogether, unlike the last round of questions for Barrett when she faced confirmation hearings for her current office — I think the reasons for that will be just as strategic and insincere. 

I do not doubt that questions about the relationship between one’s faith and one’s office are relevant. Although I do not think that Catholicism — or religion more generally — is unique in this, it is clearly true that there can be and often are interesting tensions between one’s deep commitments and one’s performance of office. Perhaps, indeed, the tensions are greater than even the putative office-holders recognize, and demand deeper thought about the imperatives of office. I could imagine rich and fascinating discussions about this. I could certainly imagine holding such a conversation with Judge Barrett, who has written interestingly on this very subject. But I see no possibility of such a conversation happening in the United States Senate, let alone in social media. And most nominees themselves seem to follow the perfectly sound advice to give polished and simplistic answers to such questions, not to pursue them in all their nuance and depth. Am I giving too little credit to the Senators, or to the process and the kind of discourse it encourages or demands? In a word: No.

A standard question posed of nominees as a prelude to the mess that follows goes something like this: “Are there any reasons you would not be able to fully and conscientiously fulfill your oath of office?” It is a serious question. Perhaps it should be taken much more seriously by the person answering it, and not treated as the boilerplate it has become. And we surely know that the reality can be more complex than the question or its answer. (Although perhaps we tend to see complexity only in one cynical direction, and not to give sufficient consideration to the possibility that a person might put the duties of office first despite his or her prior views and commitments — that, say, a person might conclude that even if she is a socialist or a libertarian, her office as judge demands that she not find socialism or libertarianism in the Constitution if she doesn’t think it’s there.) At least where religion is concerned, however, it may be the only question we can productively ask on such an occasion — not because of the Religious Test Clause, but because of our own failings and the sorry state of public and political discourse. ♦


Paul Horwitz is the Gordon Rosen Professor of Law at the University of Alabama. Focusing on the study of law and religion, he is an expert on the First Amendment and has published two books and dozens of articles on the matter. He is also one of a group of scholars who write for the online legal blog, Prawfsblawg.