The Senate Judiciary Committee is scheduled to begin hearings today on the nomination of Judge Amy Coney Barrett to the United States Supreme Court.
If confirmed, she would fill the seat that has been vacant since Justice Ruth Bader Ginsburg’s death last month.
In approaching the confirmation hearings, all senators should remember an important, constitutional ground rule: Do not ask questions that appear to impose a religious test. Doing so would violate one of the core constitutional pillars upholding religious freedom for all.
Religion is mentioned only once in the original text of the U.S. Constitution: Article VI says, “but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
The founding framers decided that a person’s religious identity – or lack thereof – is completely irrelevant to whether that person is qualified to hold an official position in our government.
Judge Barrett’s religion should neither help nor hinder her in the confirmation process. The fact that she is a committed Catholic does not make her a better or worse Supreme Court nominee than someone from a different faith tradition or a person who is not religious.
Much of the attention to this topic has focused on concerns that senators may delve into the specifics of her beliefs, including her involvement in a small charismatic group called “People of Praise.” It is difficult to imagine how a cross-examination of her theological beliefs or religious practices would be helpful in examining her qualifications for office.
While senators should refrain from asking about her religious views, they should uphold their duty to thoroughly vet her and question her about her constitutional and legal philosophy and positions. Their job is to determine whether she would faithfully execute her duties as a justice.
All nominees should confirm their commitment to religious freedom for all.
Our constitutional system protects religious liberty both with Article VI’s “no religious test” clause and the First Amendment’s twin guarantees of religious freedom, guarding against the government’s establishment of religion and protecting individuals’ and communities’ ability to practice their religion (or not).
The shorthand description for our country’s system of faith freedom has long been described as “the separation of church and state.”
Senators should ask Judge Barrett about her judicial philosophy when it comes to church-state cases. The Supreme Court’s enforcement of the First Amendment’s Establishment Clause and related treatment of “no establishment” principles has eroded over the past few decades in ways that threaten religious freedom for all.
Judge Barrett has already signaled that her judicial approach is aligned with that of the late Justice Antonin Scalia, who took a cramped view of the Establishment Clause, wrote dissents that would have supported government-sponsored prayer at public school events and publicly rejected the view that the Constitution requires government neutrality between religion and nonreligion.
Senators should ask that Judge Barrett explain her position on these important aspects of church-state law.
The fact that the Court might be asked to rule on an issue that intersects with religion does not mean that topic is off-limits. When a nominee has spoken openly about her religion and public service, as Judge Barrett has done in prior articles and speeches, it is fair game for the committee to inquire about the nominee’s ability to rule impartially.
Will she be able to apply the Constitution and other laws to the cases before her, setting aside the teachings or texts from her religious tradition, even when in conflict with teachings of her religion or recuse herself where that is not possible? Such a line of inquiry would not run afoul of the “no religious test” principle.
As someone whose faith influences every aspect of my life, I’m not suggesting that religion will have no impact on Judge Barrett as a federal judge. Indeed, her religion may inspire her to be more compassionate, empathetic, patient, fair, humble and ethical – all important qualities in a good judge.
But when it comes to deciding cases, she must show that she will be a justice for all Americans, not only those who share her faith.
Judge Barrett is being considered for a lifetime appointment as a Supreme Court justice, one of the most important positions in our secular government.
The senators should ensure she would be both willing and able to interpret and apply the laws of our land equally, without regard to religion.
Editor’s note: BJC provided a review of Judge Amy Coney Barrett’s church-state record to the Senate Judiciary Committee. You can read it online.
Executive director of BJC and the co-host of the “Respecting Religion” podcast series.
