Friday, October 14, 2005

Revisiting the Religious Test Argument

Someone as normally clear-headed as Tony Perkins of the Family Research Council is now saying that the White House talking positively about Harriet Miers' faith and commitment is like promoting a religious pre-test and encourages senatorial inquiry into how that faith will impact the nominee's decisions.

In a posting "No Religious Pre-Test Either" he writes:

We scored liberal Democrats on the Senate Judiciary Committee, and their interest group allies, for making comments and inferences about the fitness for office of Bush nominees because of their "deeply held personal beliefs." We argued then, and believe now, that this language was code for the Democrats' objections to any judicial nominee of orthodox religious conviction. We pressed the Democrats not to go down this path, and on the nomination of Judge Roberts, not to mention the stopping of filibusters against key appellate nominees, the Democrats largely avoided anything that smacked of a religious test.

The same must be said now for advocacy of Harriet Miers. We are the last people on earth to object to the news that she is a committed Christian; the Good News is, above all, great news for her. And we reiterate, this fact about her is neither grounds for objection nor a fit object for examination by the Senate. By the same token, this fact is not grounds for certifying her to us or to the public. It's not just that religious conviction is an unreliable indicator of a judicial philosophy (though it clearly is), it's that inferences drawn from an individual's religious affiliation have no place in decisions to nominate or confirm a judicial appointee. Religious convictions do find their way appropriately into the law when they undergird and inspire norms of justice, as they have always done in the American experience. But that is not the same thing as drawing conclusions about a judge's potential rulings based on their personal faith. On that point, the question should not be asked nor should it be answered.

Tony Perkins is sliding down the slippery slope of saying that bringing up religious faith and commitment is the same as requiring or imposing it. How else would we know that Harriet Miers has a deep religious faith (or that the President admires deep religious faith) unless they brought it up? To admire is not to require.

Perkins himself in the same post above faults Barry Lynn for suggesting that President Bush's desire to find judicial nominees who believe "our rights are derived from God" is a religious litmus test. Actually, that comes closer to a religious test than admiring Harriet Miers for having religious commitment and integrity. But Perkins does not seem to see the inconsistency in his back-to-back statements.

If the tradeoff is that either we (and one supposes the nominee) are not allowed to speak of the nominee's religious faith or it becomes a legitimate part of governmental inquiry, we have struck a body blow to the First Amendment and Article VI of the Constitution.

Tony Perkins and others like him advancing this argument are encouraging more and more "stealth" candidates--candidates who let no deep convictions show up in their life--especially religious convictions. To ask nominees or their supporters to hide religious commitment is to wander along the road of another kind of religious "pre-test".

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