ARE THE DOCTRINES OF THE ROMAN CATHOLIC CHURCH grounds for disqualification to be a judge, according to the Democrats in the U.S. Senate? Of course. This is a simple question of fact. The Roman Catholic Church teaches that abortion is a sin. The Democratic Party teaches that no one can be a judge who does not believe that the U.S. Constitution grants a right to abortion, and has made the reasonable extension, given the premise, that no one who believes abortion is a sin can be trusted to be a judge.
That is not, however, a religious test, and it is quite constitutional. It is a criterion applied to each individual nominee by each individual senator. It would even be okay if the Democratic Party said outright: "We will never vote for any Roman Catholic, because we do not believe in papal supremacy." And the President could say, "I will never nominate an Episcopalian". What is illegal is to have a law that pre- screens government employees, preventing their appointment without the hassle of a special act of Congress.
Whether Democrats are anti-Catholic is a complicated and separate question. I do not think much of anyone would object to a potential judge, senator, or mayor on the grounds that he believed in transubstantiation (that the communion bread actually turns into the flesh of Jesus), clerical celibacy, or the immaculate conception of the Virgin Mary (that she was sinless, unlike everyone else but Jesus). But every Catholic doctrine I can think of that touches on politics--- that the state should aid Catholic schools, that abortion and birth control should be illegal, that there should not be divorce for any reason, that homosexuality is evil-- would disqualify someone from being the Democratic nominee for President. So I think it fair to say that Democrats are anti- Catholic in the same sense that they are anti-conservative and anti-Republican.
Returning to the issue of religious tests, however--are they a bad idea? For many years, individual states had religious tests that prevented various kinds of people from holding public office. The ban is only for federal offices in the U.S. Constitution, and I suppose it is there because states were fearful of other state's religious tests being imposed on them, not out of opposition to the general idea.
Opposition to religious tests is usually emotional, and voiced by people who don't
know history or choose to cover up relevant facts and cry bigotry instead. Consider
Hugh Hewitt in The Weekly Standard, and the historian he quotes:
Historian Norman Davies writes on what followed in "The Isles":
Note that Davies uses the word "bigotry" to describe the motivation of official action
designed to punish expression of Catholic doctrine. In the 18th century, Catholics were
obliged to renounce the doctrine of transubstantiation in order to serve in government.
The emerging modern test employed by Senate Democrats obliges Catholics to renounce--or
at least remain silent on--belief in the sanctity of the life of the unborn if they wish
to serve in the judiciary.
There was good reason to ban Catholics from public office in England: they wanted to
overthrow the English Constitution. In fact, they made a good start under King James II
before he was overthrown in the Glorious Revolution of 1688. It was not that the
English gentry were so opposed to transubstantation per se: rather, that doctrine was a
"litmus test" for being a Catholic, and the Catholic view that was really objectionable
was that Parliament should be weakened and Protestantism made illegal, as it was in
France. Catholic countries didn't just refuse to let Protestants be bureaucrats: they
killed them. Remember, the Spanish Inquisition was still in operation, though it had
very few Jews, Moors, and Protestants left to work on.
The English Parliament was so outraged by this step in favour of toleration that it
refused to vote subsidies for the Dutch War until the Declaration was rescinded and
replaced by the first of two ferocious Test Acts, institutionalizing religious
intolerance. The first Test Act (1673) insisted that all civil and military officers of
the crown take the oaths of supremacy, allegiance, and non resistance, and formally
renounce the Catholic doctrine of transubstantiation. . . . Its provisions were later
extended by the second Test Act (1678) to all members of both houses of Parliament. In
this way, both domestic and foreign policy became infected by bigotry.
We actually have a similar problem today. Many Moslems--perhaps a majority in the U.S.-- would like to see the Constitution abolished and replaced by Muslim law, and they view it as their duty to aid in that overthrow if the occasion ever arises. There is a good case to be made that if the Constitutional did not prohibit it, we should disqualify Moslems as soldiers or agents of the CIA, FBI, or Secret Service. The cost would be slight-- the Moslem soldiers would have to be replaced by slightly less qualified people. We can already see how such a policy would have had substantial benefit: it would have saved a number of American lives in Iraq--remember the Moslem American who decided to blow up some of his fellow soldiers to serve Allah?
UPDATE. The following are the texts from the Constitution and its amendments that you might
think relevant: Article 6 Clause 3 and the 1st and 14th Amendments.
Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the Government for a redress of
grievances.
All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
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.
Actually, only the first of these is relevant, but I include the others to verify that
they don't pertain to religious tests for public office. Looking at the text, I see that
it would not be unreasonable to take a view opposite to mine, and say that when a
Senator says outright that he will never vote for a nominee who is Catholic, he is
applying a religious test. But what action would be brought in court? I suppose the
nominee could bring a motion for a writ of mandamus, which off the top of my head I
think is a command from the court to an official to carry out his legal duty (see my
Illinois Supreme Court entry, sometime recently). But we are treading on dangerous
ground when we invite judges to command legislators to vote a certain way--- even though
judges do that sometimes. It would be better to interpret "religious test" as what it
was in England at the time the Constitution was written: a statute that requires a
religious qualification for holding office.
The first half of Article 6 Clause 3 is interesting too. Could a Wahabi Muslim swear in good faith to support the Constitution? Maybe I was too harsh. Someone could swear to support it, while working to abolish it by the legal means of Amendment. Some anti- slavery people before 1860 did that (others, who helped freed slaves get to Canada, probably couldn't have taken the oath in good faith). I don't know whether a good Wahabi could fight fellow Muslims who were working to abolish it violently, though.
[ http://php.indiana.edu/~erasmuse/w/03.08.05a.htm ]
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