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August 05, 2005

The Religous Test

Via Dean Esmay comes a link to Manual Miranda's column "Judging While Catholic". Miranda seeks to educate journalists on what the "religious test" prohibition in the Constitution really means.

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.

(Read the whole thing for more examples and further historical evidence of Miranda's reading of the "religious test".)

One of the commenters at Dean's World seems to have this same misconception. So consider this: Suppose this "religious test" was really a "duck test", such that you could not require a test to see if the potential office holder was a duck. And then imagine a Senator being interviewed after the vote saying, "I voted against this nominee because he looks like a duck, walks like a duck, quacks like a duck and thinks like a duck. Now, I didn't vote against him because he is a duck, but because he had those qualities."

That wouldn't pass either the "duck test" nor the "smell test". And questions about John Roberts' religious views won't pass the "religious test".

Posted by Doug at August 5, 2005 01:57 PM

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