Judging While Catholic
Do journalists understand that the Constitution prohibits religious tests for officeholders?
John Roberts will be the fourth Roman Catholic on the current Supreme Court, but only the 10th Catholic among the 109 justices who've served in the high court's 215-year history. A few senators and a good many journalists have made much of it.
Earlier this week, in a span of minutes, three journalists asked me to respond to liberals, like Sen. Richard Durbin (D., Ill.), raising Judge Roberts's religion as a confirmation issue. As if there were a Republican talking point in my hand, they each asked in similar words: "What's the line on that?" Minutes before penning this column, a fourth prominent political reporter startled me further by asking: "What religion test clause? Where does that appear?"
Well, here, everyone jot this down. "The line" appears in Article VI of the U.S. Constitution: "No religious test shall ever be required as a qualification to any office or public trust under the United States."
Much bigger than the obvious problem of overreaching Democratic senators (because it is obvious) is that Americans are depending on journalists to catalyze the most important public debate outside an election: the confirmation of a Supreme Court justice. The American people already start at a disadvantage. The Pew Research Center conducts regular polls on the thinking of the media. The preface to one 2004 report notes:
Journalists at national and local news organizations are notably different from the general public in their ideology and attitudes toward political and social issues. Most national and local journalists, as well as a plurality of Americans (41%), describe themselves as political moderates. But news people, especially national journalists are more liberal, and far less conservative, than the general public.
Most Americans know this by now. Some may know the result of another Pew survey that found most journalists were overwhelmingly irreligious. What we do not know is how many journalists read, much less understand the Constitution. In the next few weeks, we are going to have a glimpse. Here are two sightings from this week alone.
In Monday's Boston Globe, columnist Cathy Young, also a contributing editor of the libertarian Reason magazine, concludes: "A candidate's or nominee's ideology should be fair game whether it's religious or secular in nature, whether it's rooted in conservative Catholicism or liberal feminism."
More interesting is how Ms. Young gets to this conclusion. While applauding John F. Kennedy's milestone election as the first Catholic president, Ms. Young recites Article VI, but she conflates the religious test clause with the provision that officeholders "shall be bound by oath or affirmation, to support this Constitution." She interprets this to mean that "an officeholder could not be required to take an oath or perform a religious ritual affirming his allegiance to a particular religion or denomination, or even a general belief in God."
Ms. Young thinks it's about cookie-cutter discrimination, and not about protecting actual religious beliefs. In fact, the two clauses are quite separate in their intent. Their distinct origin is itself telling. At the Constitutional Convention most proponents of the Oath Clause sought to ensure the public servants were "sincere friends to religion," but greater forces than that had been lobbying to ensure that there would be no "religious test" for public office. Not least of the lobbyists was America's first Roman Catholic bishop, John Carroll of Maryland, whose brother Daniel was just one of two Catholics in the Philadelphia Convention.
Requiring an oath or affirmation in taking public office was the Framers' nod to God, the requirement that no particular set of religious beliefs be required of office holders was their nod to their painful experience with the religious intolerance of England.
In Wednesday's Washington Post ("Why It's Right to Ask About Roberts's Faith"), columnist E.J. Dionne asks: "Is it wrong to question Judge John Roberts on how his Catholic faith might affect his decisions as a Supreme Court justice? Or is it wrong not to? . . . Why is it wrong to ask him to share his reflections with the public?" It would be helpful, Mr. Dionne concludes, "if Roberts gave an account of how (and whether) his religious convictions would affect his decisions as a justice."
Mr. Dionne's error is found is his own words: "Yes, any inquiry related to a nominee's religion risks being seen as a form of bigotry, and of course there should be no 'religious tests.' " Indeed. And that is the problem, again.
Journalists believe that the religious test clause guards against simple discrimination against Catholics or Jews or any other particular denominations. It does not. It prohibits a probe of what the potential officeholder believes derived of his religious convictions. It is not about what he lists on a questionnaire under religion, as if it were like race or sex. That is why the liberal press has mocked the concern raised by conservatives that the abortion litmus test and other lines of inquiry are a constitutionally prohibited religious test.
When England passed its two Test Acts, they did not prohibit Catholics from holding public office. Rather, the "test" sought to exclude anyone from holding public office who believed that the bread and wine in the ritual of the Eucharist turned into the body and blood of Jesus Christ, a fundamental tenet of Catholic belief.
Fortunately, Mr. Durbin and Sen. Chuck Schumer (D., N.Y.) have shied away from that line of inquiry, since their clients haven't figured out how to profit from it. Lucky for me, because it would be hard to explain transubstantiation using just Republican talking points.
MANUEL MIRANDA
Friday, August 5, 2005 12:01 a.m. EDT
Mr. Miranda, former counsel to Senate Majority Leader Bill Frist, is founder and chairman of the Third Branch Conference, a coalition of grassroots organizations following judicial issues. His column appears on Mondays, Wednesdays and Fridays.
John Roberts will be the fourth Roman Catholic on the current Supreme Court, but only the 10th Catholic among the 109 justices who've served in the high court's 215-year history. A few senators and a good many journalists have made much of it.
Earlier this week, in a span of minutes, three journalists asked me to respond to liberals, like Sen. Richard Durbin (D., Ill.), raising Judge Roberts's religion as a confirmation issue. As if there were a Republican talking point in my hand, they each asked in similar words: "What's the line on that?" Minutes before penning this column, a fourth prominent political reporter startled me further by asking: "What religion test clause? Where does that appear?"
Well, here, everyone jot this down. "The line" appears in Article VI of the U.S. Constitution: "No religious test shall ever be required as a qualification to any office or public trust under the United States."
Much bigger than the obvious problem of overreaching Democratic senators (because it is obvious) is that Americans are depending on journalists to catalyze the most important public debate outside an election: the confirmation of a Supreme Court justice. The American people already start at a disadvantage. The Pew Research Center conducts regular polls on the thinking of the media. The preface to one 2004 report notes:
Journalists at national and local news organizations are notably different from the general public in their ideology and attitudes toward political and social issues. Most national and local journalists, as well as a plurality of Americans (41%), describe themselves as political moderates. But news people, especially national journalists are more liberal, and far less conservative, than the general public.
Most Americans know this by now. Some may know the result of another Pew survey that found most journalists were overwhelmingly irreligious. What we do not know is how many journalists read, much less understand the Constitution. In the next few weeks, we are going to have a glimpse. Here are two sightings from this week alone.
In Monday's Boston Globe, columnist Cathy Young, also a contributing editor of the libertarian Reason magazine, concludes: "A candidate's or nominee's ideology should be fair game whether it's religious or secular in nature, whether it's rooted in conservative Catholicism or liberal feminism."
More interesting is how Ms. Young gets to this conclusion. While applauding John F. Kennedy's milestone election as the first Catholic president, Ms. Young recites Article VI, but she conflates the religious test clause with the provision that officeholders "shall be bound by oath or affirmation, to support this Constitution." She interprets this to mean that "an officeholder could not be required to take an oath or perform a religious ritual affirming his allegiance to a particular religion or denomination, or even a general belief in God."
Ms. Young thinks it's about cookie-cutter discrimination, and not about protecting actual religious beliefs. In fact, the two clauses are quite separate in their intent. Their distinct origin is itself telling. At the Constitutional Convention most proponents of the Oath Clause sought to ensure the public servants were "sincere friends to religion," but greater forces than that had been lobbying to ensure that there would be no "religious test" for public office. Not least of the lobbyists was America's first Roman Catholic bishop, John Carroll of Maryland, whose brother Daniel was just one of two Catholics in the Philadelphia Convention.
Requiring an oath or affirmation in taking public office was the Framers' nod to God, the requirement that no particular set of religious beliefs be required of office holders was their nod to their painful experience with the religious intolerance of England.
In Wednesday's Washington Post ("Why It's Right to Ask About Roberts's Faith"), columnist E.J. Dionne asks: "Is it wrong to question Judge John Roberts on how his Catholic faith might affect his decisions as a Supreme Court justice? Or is it wrong not to? . . . Why is it wrong to ask him to share his reflections with the public?" It would be helpful, Mr. Dionne concludes, "if Roberts gave an account of how (and whether) his religious convictions would affect his decisions as a justice."
Mr. Dionne's error is found is his own words: "Yes, any inquiry related to a nominee's religion risks being seen as a form of bigotry, and of course there should be no 'religious tests.' " Indeed. And that is the problem, again.
Journalists believe that the religious test clause guards against simple discrimination against Catholics or Jews or any other particular denominations. It does not. It prohibits a probe of what the potential officeholder believes derived of his religious convictions. It is not about what he lists on a questionnaire under religion, as if it were like race or sex. That is why the liberal press has mocked the concern raised by conservatives that the abortion litmus test and other lines of inquiry are a constitutionally prohibited religious test.
When England passed its two Test Acts, they did not prohibit Catholics from holding public office. Rather, the "test" sought to exclude anyone from holding public office who believed that the bread and wine in the ritual of the Eucharist turned into the body and blood of Jesus Christ, a fundamental tenet of Catholic belief.
Fortunately, Mr. Durbin and Sen. Chuck Schumer (D., N.Y.) have shied away from that line of inquiry, since their clients haven't figured out how to profit from it. Lucky for me, because it would be hard to explain transubstantiation using just Republican talking points.
MANUEL MIRANDA
Friday, August 5, 2005 12:01 a.m. EDT
Mr. Miranda, former counsel to Senate Majority Leader Bill Frist, is founder and chairman of the Third Branch Conference, a coalition of grassroots organizations following judicial issues. His column appears on Mondays, Wednesdays and Fridays.
posted by R7 | 8/07/2005 01:55:00 AM
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