The Constitution bars religious tests for public office, but scholars say that doesn’t apply to Senate votes.
By Steven Nelson, Staff Writer | June 8, 2017, at 6:12 p.m.
The Constitution says the U.S. government can’t impose religious tests for public office. But scholars say Sen. Bernie Sanders can without consequence apply his own religious rubric in opposing a presidential nominee who believes non-Christians risk going to hell.
The Vermont independent, who is Jewish but “not particularly religious,” grilled Russell Vought, nominee to be deputy director of the Office of Management and Budget, on Wednesday, focusing on an article he wrote that said Muslims “do not know God because they have rejected Jesus Christ his Son, and they stand condemned.”
Sanders asked if that view was Islamophobic, and if Jews also stand condemned.
Vought responded that he is a Christian. “In your judgment, do you think that people who are not Christians are going to be condemned?” Sanders asked. Vought began to answer before Sanders interrupted, asking if that viewpoint was “respectful of other religions.”
National Review columnist David French writes that Sanders was “imposing a religious test for public office in direct violation of Article VI of the United States Constitution” and that he was objecting to “entirely orthodox Christian beliefs” about access to heaven.
Constitutional scholars say Sanders, who said he will vote against Vought, may violate the spirit of the Constitution, but arguably not Article VI, which states: “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
“Historically, this was a reference to the Test and Corporation Act in Britain and similar laws in American colonies and states that limited office to members of the Church of England, to Christians, to Protestants or to believers in God,” says Stanford University law professor Michael McConnell.
“No senator should vote against a nominee based on his or her religion. It would violate the spirit if not the letter of the Constitution,” McConnell says. “But senators can vote against nominees for any reason or no reason at all. There would be no legal consequence, and the nominee would have no forum for complaint.”
Allan Vestal of Drake University Law School says the Constitution’s religious-test ban “does not provide a mechanism for inquiring into the motivations of individual senators and representatives in the votes they cast.”
“There is no constitutional constraint on yea or nay votes, so yes he can do it,” agrees Richard Epstein, a New York University law professor.
“He may pay a political price. But to hold the other position means that every close vote in the Senate will allow one to probe the motives of all senators,” Epstein says. “What do we do with those who are less explicit than Sanders but harbor these biases?”
Brigham Young University law professor Fred Gedicks says “it would be very difficult to craft a lawsuit” in response to a hypothetical one-vote Senate confirmation loss.
Gedicks says there have been a handful of successful lawsuits against laws requiring the teaching of creationism or establishment of school moments of silence, with courts finding a lack of secular purpose behind the votes.
“[But] a confirmation vote isn’t even a law. Can you attack a single [senator’s] vote for lack of secular purpose?” Gedicks asks doubtfully. He believes a lawsuit would be dismissed for lack of standing or on the grounds it’s a non-justiciable political question.
McConnell points to the Constitution’s Speech or Debate Clause, which he says makes members of Congress “absolutely immune from suit for their votes.”
University of Alabama law professor Paul Horwitz argues senators are “free to vote against a nominee for religious reasons, just as he or she is free to so for other reasons, including racism or sexism.”
“It may be atrocious, but it’s not unconstitutional,” he says.
Horwitz says in some cases, voting against someone based on their religious beliefs may even be reasonable.
“Imagine a nominee for the head of the EPA who has stated that for religious reasons, she believes that we should use up all the earth’s natural resources now and not worry about despoiling the earth or wasting its resources, because she is certain the world will end in five years,” he says.
“That said, the values behind the Religious Test Clause and the religion clauses of the First Amendment certainly count against Senator Sanders’s position here,” Horwitz says. “Senator Sanders was not advancing a political view, but a theological one, and he has no business telling nominees that they must all believe and testify that that all roads to Heaven are the same.”
Sen. Chris Van Hollen, D-Md., also pressed the matter during the Wednesday hearing. “I’m a Christian, but part of being a Christian, in my view, is recognizing that there are lots of ways that people can pursue their God,” Van Hollen said. “No one is questioning your faith … It’s your comments that suggest a violation of the public trust in what will be a very important position.”
A Sanders spokesperson defended his position Thursday, telling The Atlantic “racism and bigotry—condemning an entire group of people because of their faith—cannot be part of any public policy” and that it “is simply unacceptable” for an officeholder to use “such strong Islamophobic language.” A Van Hollen spokeswoman told The Atlantic that his testimony “wasn’t questioning anyone’s faith. He asked Mr. Vought to be fair to all Americans and uphold the Constitution.”