X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Can the Constitution’s religious test clause save Mitt Romney from voters who are uncomfortable with Mormon theology? When Romney’s Dec. 6 don’t-hate-me-because-I’m-Mormon speech reached the issue of his church’s distinctive doctrines, the Republican presidential candidate declined to go into details about the Church of Jesus Christ of Latter-Day Saints. He reasoned that such a discussion would “enable the very religious test that the founders prohibited in the Constitution.” Romney is right that going into the details of Mormon theology would empower voters to apply their own “religious test” in judging his candidacy. But his constitutional argument conflates a de jure religious test imposed by the federal government with a de facto religious test by American voters. In other words, there’s a big difference between what the government can require and what the people will demand. If voters have more questions about his faith, Romney is wrong to think the Constitution saves him from having to answer. PIETY NOT REQUIRED Article VI of the Constitution states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” The clause has been largely noncontroversial. The Supreme Court has mentioned it only a handful of times and has never had to enforce it, perhaps because its application to the federal work force seemed clear. On the state level, the Court concluded in Torcaso v. Watkins (1961) that a candidate for notary public in Maryland could not be required to profess a belief in God. The Court did not reach the religious test clause, instead using the First Amendment’s religion clauses to strike down the Maryland requirements. Given that the First Amendment applies equally to the federal government, Torcaso rendered the religious test clause more or less redundant. So there the religious test clause sat — preserved in the constitutional text yet little cited — until a would-be president grasped hold of it to avoid a discussion of religious doctrine that might well end his political candidacy. As Peggy Noonan noted on Dec. 7 in The Wall Street Journal, Romney’s difficulty lies within “a particular fundamentalist strain within evangelical Protestantism.” I know more bluntly what Noonan referred to with some delicacy. I was raised in a fundamentalist Southern Baptist church, and many in my denomination (the nation’s largest Protestant group) regard the Mormon church as a cult. Even the pastor of the far more moderate Baptist church I now attend will periodically make dismissive comments in his sermons about Mormon founder Joseph Smith Jr.’s claim to have received a divine revelation on golden tablets. Romney was trying to reassure voters with my sort of background. Did he succeed? For me, yes, in that Romney, like John F. Kennedy before him, convincingly explained that his candidacy was not defined by his religion, his church authorities would not have any undue influence, and he would serve the common cause of all the American people. In addition, many of the aspects of Mormon theology that seem most unusual to Baptists and other evangelicals — the new written revelation beyond the Bible, for example — seem far distant from current matters of government policy, such the war in Iraq or Social Security reform. But perhaps I am more easily convinced than many GOP primary voters. Romney’s real difficulty is one that cannot be resolved by his appeal to the Constitution. The religious test clause will not bear the weight that Romney seeks to place upon it. IN IT TOGETHER Despite the Constitution’s First Amendment and the religious test clause, it is simply too difficult for a presidential candidate to fully separate religion from politics. Any true faith is a key aspect of a candidate’s moral values. Those values in turn help determine the candidate’s policy positions. And voters want to know what really drives a leader. Romney understands this perfectly well, and he tried to exploit it in his Dec. 6 speech. For example, he argued that the “notion of the separation of church and state” has been taken well beyond its original meaning. He attacked those who see religion “as merely a private affair with no place in public life.” “They are wrong,” he said, flatly and almost dogmatically. Now, Romney may be right or he may be wrong about those he accused of seeking to establish a new religion of secularism. But let us not pretend that, by this position, Romney didn’t create his own sort of “religious test.” It is a test that would emphatically reject the views of those, religious or irreligious, who want the strict separation that Romney rejects. Michael Newdow, the California atheist who was in court on Dec. 4 to remove the reference to God in the Pledge of Allegiance and on the currency, would be cast out into political darkness. Newdow’s political activism is, of course, influenced by his own views on religion. And he’s certainly not alone. This happens all the time, with the adherents of all major and minor religions. The U.S. Conference of Catholic Bishops, for example, released a statement on Nov. 14 about “faithful citizenship.” It stated that Catholics should be “guided more by our moral convictions than by our attachment to a political party or interest group.” Abortion, in particular, was identified as “intrinsically evil,” “always wrong,” and “not just one issue among many.” The document even warned that political choices “may affect the individual’s salvation.” Many Protestants, likewise, see political questions in religious terms. For those on the right, the critical issues may be abortion and stem-cell research, where beliefs about the beginning of life drive opposition. For those on the left, the issues may be global poverty and climate change, where believers see a religious obligation to help the poor or to exercise good stewardship over the environment. Quakers’ moral views on war in general surely drive their position on the particular war in Iraq. And, of course, America’s religious voters are not just Christians. From Judaism to Islam to Hinduism to Wicca, different faiths help shape their adherents’ political beliefs. In short, beneath the nice-sounding generalities about religious tolerance and separation of church and state (which aren’t even universal), voters are constantly applying religious tests as they reach political conclusions and evaluate political candidates. AN IRONIC BIND As a result, the Constitution’s religious test clause may prove ineffective for precisely the most powerful offices. For ordinary federal employees, the clause bars formal religious tests, but practically no one seems to call for such restrictions on the federal work force anyway. For elected policy-makers such as presidents and members of Congress, the reality is different. Voters choose elected officials to represent them, often because of perceived shared values, and those shared values are expected to shape the representatives’ policy choices. The religious test clause, to the extent that voters find it relevant at all, is merely a sort of persuasive authority urging them to look beyond religious labels. Voters are free to ignore it. The fact is that voters demand a lot of personal information about presidential candidates, ranging from marital problems to medical conditions to youthful indiscretions. For a candidate to explain how his or her religious beliefs influence current political positions seems far more relevant than much of the information that voters expect. Indeed, many politicians might regard this open-ended call to highlight moral values as a softball pitch. So if Romney continues to resist such explanations on the grounds of the religious test clause, he may find himself in an ironic bind. In his Dec. 6 speech, he said Americans should acknowledge the Creator and not separate ourselves from our religious heritage. He pointed to how voters could witness his religious beliefs in his marriage and family. But when such religious considerations are put into play, they cannot be selectively constrained by the religious test clause. Having used religion to his political advantage, Romney should find it harder to resist additional questions about how his faith affects his politics. Matthew 25:62 says, “They that take the sword shall perish with the sword.” As happens not infrequently, the Good Book has something on point, even if it’s not quite the sermon that Romney was hoping to hear.
Robert L. Rogers is associate opinion editor at Legal Times .

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.