This is one of those GetReligion topics that — alas — keep popping up every year or two. Here is the Deseret New headline on the latest case study for journalists to file in the growing “Spot the religion test” file: “Is it legal to ask nominees to federal office if they believe in God?”
There’s a reason that this keeps happening. Church-state conflicts, especially those involving Sexual Revolution doctrines, are among the hottest of America’s hot-button political issues. The First Amendment is, for different reasons, under assault from some camps on the political right and also from many illiberal voices on the left.
In terms of raw statistics, Democrats rely on a grassroots base that, with the exception of the Black Church, is increasingly made up of Nones, agnostics, atheists and religious liberals. Republicans seeking office cannot afford to ignore people in pews — period.
All of this leads us back to these words in Article 6 in the U.S. Constitution:
The Senators and Representatives … 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 headline on the Deseret News piece reads like an opinion essay, but this is actually a solid news feature that quotes a variety of voices active in debates about this church-state issue. Here is the overture:
The Constitution states that the government can’t create a religious test for public office. But does that mean confirmation hearings should include no mention of faith?
There are at least a few members of each party who think some religion questions are fair game. In 2017, for example, Sen. Dianne Feinstein, D-Calif., quizzed Supreme Court Justice Amy Coney Barrett, who was then a nominee to the 7th Circuit Court of Appeals, about the relationship between her Catholic faith and her work as a judge.
“The dogma lives loudly within you,” Feinstein said.
Just this week, Republican Sen. John Kennedy of Louisiana asked Hampton Dellinger, who has been nominated to lead the Justice Department’s Office of Legal Policy, whether he believes in God.
“A lot of people have faith. Did it ever occur to you that some people may base their position on abortion on their faith?” Kennedy said after Dellinger confirmed he has “faith.”
There was, in this case, pushback from the left In the more famous Feinstein case, the pushback came (with a few exceptions) from the right.
Truth is, there is a thin line between politicos insisting that they have a right to ask questions about nominees stances on religion-infused issues and those who are asking pushy questions about a person’s religious beliefs. I would add this: It also matters whether politicos question a nominee’s beliefs about a topic that is actual linked to the post to they are seeking.
The bottom line: It is one thing to ask a nominee theological questions. It is something else to ask questions about their previous ACTIONS linked to First Amendment issues and other church-state matters.
It’s easy to blur the lines when asking questions of this kind. Back to the Deseret News report:
Legal experts generally agree that religion questions such as those posed by Feinstein and Kennedy are problematic, regardless of the senators’ intentions.
Even if it was legitimate for Feinstein to wonder about Barrett’s willingness to enforce legal precedents related to abortion rights, her question “cast suspicion on Catholic nominees generally,” wrote Paul Horwitz, a law professor at the University of Alabama, in 2017.
“The question itself is probably better asked in a simpler, non-religiously-oriented way, and a reasonable senator should not discount the very real likelihood that the nominee’s answer that she will judge fairly and impartially is accurate,” he said.
Thus, it is one thing to ask a nominee if he or she believes in God. It is something else to ask about the nominees statements and logic about specific cases involving the First Amendment — especially if the person has been directly involved in these cases.
Religion-beat pros and news consumers interested in this topic may want to check out this GetReligion post from a few years ago: “Let's play 'Spot the religious test' in some big news stories — on left and the right.”
I would also note that, while the Feinstein remarks received more ink (this tends to happen with court nominations linked to abortion), I think that a 2017 conflict involving Sen. Bernie Sanders was probably more important, since it focused — literally — on a theological issue about salvation and eternal life.
The nominee in question was one Russell Vought, an evangelical Protestant who was up for an Office of Management and Budget post in Donald Trump’s White House. In his past, he had written a letter taking sides in a theological debate at Wheaton College, which is a private liberal arts school.
The following is drawn from my “On Religion” column about this drama under bright lights in a U.S. Senate hearing room:
… Sanders said: "You wrote, 'Muslims do not simply have a deficient theology. They do not know God because they have rejected Jesus Christ, His Son and they stand condemned.' Do you believe that that statement is Islamophobic?"
The nominee repeated his defense of this ancient Christian doctrine. Sanders kept asking if Vought believed that Muslims "stand condemned."
Once again, Vought said: "Senator, I'm a Christian …"
Sanders shouted him down: "I understand you are a Christian! But this country is made of people who are not. … Do you think that people who are not Christians are going to be condemned?" Sanders concluded that he would reject Vought because, "this nominee is really not someone who this country is supposed to be about."
Note: Sanders was prepared to base his vote against Vought on what the senator saw as his heretical answer to a theological question, as opposed to a vote based on the nominee’s actions on economic or political questions that were relevant to his future work on the White House staff.
In the new case, Sen. Kennedy could have asked Dellinger how he had handled debates about abortion, and other life issues, in which participants cited their religious or secular beliefs. Did the nominee believe that religious, or secular, beliefs were automatically out of bounds when discussing these kinds of conflicts?
Journalists need to grasp the difference between these two kinds of questions, which, in turn, will help readers understand the core issues in these debates.
Just saying. Again.