The Constitution states that the government can’t create a religious test for public office. But does that mean confirmation hearings should include no mention of faith?
There are at least a few members of each party who think some religion questions are fair game. In 2017, for example, Sen. Dianne Feinstein, D-Calif., quizzed Supreme Court Justice Amy Coney Barrett, who was then a nominee to the 7th Circuit Court of Appeals, about the relationship between her Catholic faith and her work as a judge.
“The dogma lives loudly within you,” Feinstein said.
Just this week, Republican Sen. John Kennedy of Louisiana asked Hampton Dellinger, who has been nominated to lead the Justice Department’s Office of Legal Policy, whether he believes in God.
“A lot of people have faith. Did it ever occur to you that some people may base their position on abortion on their faith?” Kennedy said after Dellinger confirmed he has “faith.”
In each case, the senators faced swift pushback. Feinstein was accused of violating the Constitution’s ban on religious tests, while Kennedy was criticized for acting as if atheists need not apply for public service.
“A senator demanding to know whether a nominee believes in God is a disquieting attack on the tens of millions of Americans who, in fact, do not,” said Nick Fish, president of American Atheists, in a statement released Thursday.
Legal experts generally agree that religion questions such as those posed by Feinstein and Kennedy are problematic, regardless of the senators’ intentions.
Even if it was legitimate for Feinstein to wonder about Barrett’s willingness to enforce legal precedents related to abortion rights, her question “cast suspicion on Catholic nominees generally,” wrote Paul Horwitz, a law professor at the University of Alabama, in 2017.
“The question itself is probably better asked in a simpler, non-religiously-oriented way, and a reasonable senator should not discount the very real likelihood that the nominee’s answer that she will judge fairly and impartially is accurate,” he said.
However, Horwitz and other scholars have also noted that the Constitution’s ban on religious tests is not as protective as it may seem.
Although the clause prevents the government from passing a law stating, for example, that presidential candidates must be Christian, it does not keep individual senators from basing their confirmation votes on faith.
“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,” said Michael McConnell, a law professor at Stanford University, to U.S. News & World Report in 2017.
In other words, Kennedy can’t be sued for asking Dellinger if he believes in God. Those who object to religion-related questions will have to rely on something other than legal consequences to root out religious tests, legal experts said.