Probing Nominees’ Positions on Constitutional Rights, Church-State Separation Is Not Religious Persecution

09/12/2017 02:39 pm ET

Religious Right organizations and conservative media outlets have been slamming Democratic senators over their questioning of Notre Dame Law Professor Amy Coney Barrett, who has been nominated by President Donald Trump to serve as a federal appeals court judge. At least one right-wing critic accused Democratic senators of “persecuting” Barrett for her “Catholic faithfulness” and said senators were essentially declaring “Catholics need not apply.” This is a smear that conservatives have been using against Democratic senators—many of them Catholic themselves—for more than a decade.

Religious Right organizations have a long and dishonorable history of crying “religious persecution” as a way to deflect legitimate criticism of their own political rhetoric and tactics—and using the same strategy to discredit criticism or even questioning of judicial nominees’ positions on important constitutional issues such as whether the right to privacy protects a woman’s decision to have an abortion.

Back in 2005, Religious Right groups celebrated then-Supreme Court nominee John Roberts’ Catholicism as a way of credentialing him with anti-abortion evangelicals, but their talking points suggested that people who raised questions about the role Roberts played in abortion-related cases while serving in the Solicitor General’s office were “simply attempting to impose a religious litmus test on nominees.” Two years earlier, the Committee for Justice ran an ad attacking senators who opposed the confirmation of appeals court nominee William Pryor, featuring a courthouse with a sign hanging from the door reading “Catholics Need Not Apply,” even though critics of his nomination were responding directly to his own criticism of rulings like Roe v. Wade, not his religion.

Last week, Democratic senators who asked Barrett about her views on the interplay between a judge’s faith and her ability to rule fairly were not concocting a line of questioning out of the blue. They were asking her about an article in which she had explored the same questions about a Catholic judge balancing Church teaching with the duty to uphold the law. In addition, Sen. Al Franken questioned Barrett about her relationship with the Alliance Defending Freedom, a Religious Right legal group with a global reach that the Southern Poverty Law Center has designated as an anti-gay hate group for, among other things, supporting laws that criminalize homosexuality.

People For the American Way strongly opposes religious bigotry and advocates for the fundamental constitutional principle that no person’s rights or opportunities should be restricted based on their religious beliefs. That applies to conservative Christians the same as it applies to Muslims, people of other faiths, and people who are religiously unaffiliated.

In contrast, many Religious Right leaders have, shall we say, a situational concern for the Constitution’s religious liberty provisions, including its ban on a religious test for holding public office.

In 1961, a unanimous Supreme Court overturned a Maryland law that required a person holding public office in the state to declare a belief in God—a clear violation of the Constitution’s ban on a religious test. But in their 2008 book, “Personal Faith, Public Policy,” Religious Right activists and Trump supporters Tony Perkins and Harry Jackson called the Court’s decision, like other church-state rulings, an assault against the Christian faith.

When Religious Right groups were gearing up for the 2012 election, a Family Research Council official spoke wistfully about a time when “you couldn’t hold public office in America unless you believed in Jesus Christ” and heaven and hell.

Republican office holders and candidates, including Donald Trump, have not hesitated to participate in political events organized by Christian nationalist David Lane, who believes it is the mission of the U.S. government to advance the Christian faith. A few years ago Lane wrote that “Christians must be retrained to war for the Soul of America and quit believing the fabricated whopper of the ‘Separation of Church and State,’ the lie repeated ad nauseum by the left and liberals to keep Christian America—the moral majority—from imposing moral government on pagan public schools, pagan higher learning, and pagan media…”

Religious conservatives have not been above criticizing the faith of others, of course. Sen. Tim Kaine, who was Hillary Clinton’s running mate, has been public about his Catholic faith—he was a missionary as a young man—and also about the distinctions he draws between the church’s moral teaching on issues like the death penalty and abortion and his duties as an elected official. Some conservatives slammed him for taking positions “that are incompatible with the religion he professes.”

And, of course, many Religious Right activists savaged President Obama’s faith, suggesting he is not really a Christian, or even that he is a stealth Muslim—something Trump himself repeatedly implied.

Some Religious Right leaders who posture as champions of religious freedom don’t even believe the First Amendment’s religious liberty guarantees apply to American Muslims. They argue, ridiculously, that Islam is not even a religion but a totalitarian ideology.

In 2006, Religious Right activist Denis Prager declared that Rep. Keith Ellison, a Muslim, “should not be allowed” to use the Quran for his ceremonial swearing-in as a member of Congress. “If you are incapable of taking an oath on [the Bible],” Prager wrote, “don’t serve in Congress.” Then-Rep Virgil Goode called for tighter immigration controls to prevent more Muslims from being elected to office.

Notably, there has been no outcry from conservative Christians about the teaching of Ralph Drollinger, the pastor who leads weekly Bible Studies with members of Trump’s cabinet, that Christians with government jobs are obligated to hire only righteous Christians to work for them–and that public officials have an obligation to ensure the nation has “God-fearing righteous judges,” not ones who support abortion or “make up rights for the unrighteous.” Far from expressing any concern, Christian conservatives have been praising the White House Bible studies as one sign of Religious Right influence in the administration.

The mixing of religion and politics is both inevitable and inevitably messy. So it’s worth figuring out how to do it right. It would be inappropriate to block a nominee because his church teaches that homosexuality is a sin; but it would be appropriate to ask that nominee for a commitment to upholding equal treatment under the law for LGBTQ people.

Activists and political journalists don’t always get it right. And politicians who wade into the complex intersection should be careful to articulate their concerns in a way that respects constitutional principles that protect Americans’ religious liberty.

That said, when dominionists in the Religious Right, a movement with unprecedented influence in the White House and Republican Party, argue explicitly for using the power of government to shape policy in alignment with their “biblical worldview,” and call for the election and appointment of officials who share both their religious worldview and their approach to law and politics, it becomes harder for them to claim that it is inappropriate for senators to try to find out whether nominees to lifetime positions on the federal courts share their views on the Constitution.

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