by Kristen Waggoner · February 8, 2019
“[N]o religious test shall ever be required as a qualification to any office or public trust under the United States.” Article VI of the Constitution might first been have been penned with quill and ink, but the message is timeless: no federal public office-holder should be screened, tested, or maligned for his or her personal, religious convictions.
It’s a rather forward-thinking constitutional rule. Our country today is diverse and tolerant enough to respect both the deeply held beliefs of a San Francisco club owner and those of a small-town Iowa youth pastor. And if Americans are truly free to hold their own opinions without facing government pressure to conform, religious and non-religious citizens alike should be able to participate fully in public life—up to and including government office—without compromising their deeply personal beliefs.
Unfortunately, several members of the U.S. Senate have recently revealed their desperate need for lessons in both civics and religious tolerance. Tuesday’s confirmation hearing for judicial nominee Neomi Rao is only the most recent example.
Rao has been nominated to replace Justice Brett Kavanaugh on the U.S. Circuit Court of Appeals. During her hearing, New Jersey Sen. Cory Booker subjected her to an unconstitutional line of questioning, focused entirely on her personal, religious opinions about marriage. Booker’s queries implied that, if Rao could be shown to hold the personal belief that marriage is a life-long relationship between a man and a women, she would be unfit to serve in public office.
To tee up his accusations, he brought up an article Rao wrote in 2008 about the Supreme Court decision Lawrence v. Texas, in which she wrote that the decision “eschewed older traditions in favor of an emerging awareness of the meaning and the scope of liberty.” The senator asked Rao directly: “Are gay relationships in your opinion immoral?” When Rao replied that she did not see how this was relevant to her fitness as a judge, he repeated the question, without bothering to identify how such an inquiry was relevant.
This line of questioning amounts to nothing less than a religious test for officeholders. Many Americans hold beliefs that marriage is a life-long union between one man and one woman, and many do so because of their religious convictions. As Justice Kennedy wrote in Obergefell v. Hodges and later affirmed in Masterpiece Cakeshop v. Colorado Civil Rights Commission, this view “has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.”
It is dangerous to imply, as Booker did, that any American who holds an orthodox view of marriage cannot hold public office—views held, for millennia, by adherents to the Abrahamic faiths. Worse still, Rao is certainly not the first judicial nominee to face such inappropriate lines of questioning during a confirmation hearing. Such interrogation has become a rite of passage for nominees with documented religious or conservative opinions.
In one of the better-known incidents, California Sen. Dianne Feinstein confronted judicial nominee Amy Coney Barrett about her devout Catholic faith, implying that this faith would make it impossible for Barrett to judge impartially. Feinstein scolded Barrett, “The dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for for [sic] years in this country.”
Feinstein later insisted she would never impose a religious test on a nominee, and that her questions were simply about whether Barrett would be able to judge impartially on issues like abortion and the definition of marriage. But her confrontation of Barrett, like Booker’s questioning of Rao, undercut any alleged respect for religious freedom. Both senators imply that certain religiously motivated convictions on certain cultural concerns—the dignity of human life or the definition of marriage—are beyond the pale.
While Feinstein and Booker might admit that officeholders in America can hold personal and religious opinions within a reasonable range, their understanding of that range seems profoundly limited. In fact, the range of reasonable opinions is limited to the opinions held by progressive abortion advocates and activists seeking to enforce an ever-shifting new sexual orthodoxy.
When questioned, Rao said she would put her personal convictions aside and do her best to faithfully follow precedent in her interpretation of the law. For that task, Rao appears to be qualified. She has taught law at George Mason University; served in the White House counsel’s office; and is currently the administrator for the Office of Information and Regulatory Affairs. Rao, like Barrett, recognizes that the task of a judge is to attempt to interpret the law as fairly and faithfully as possible.
Feinstein and Booker set a dangerous precedent when they imply that certain convictions—held by millions of Americans and billions of people around the world—are so unreasonable as to be impermissible for a person holding public office. Such intolerance threatens our entire American project. For the good of our country, we invite Feinstein and Booker to reread the Constitution and rediscover the merits of religious diversity and freedom of conscience.
The Federalist · by Kristen Waggoner · February 8, 2019