A Religious Test for Judges? The Secular Left Panics

Christopher D. Morris is in a lather. In his op-ed article, “Stopping a Judicial Conflict of Interest,” published earlier this week in The Boston Globe, Morris comes right to the brink of secular panic — and then goes over the cliff.
He actually suggests that Christian leaders — both Roman Catholic and Evangelical — should be called before the Senate Judiciary Committee to say whether they would discipline a church member who, as a judge, voted to uphold Roe v. Wade. He suggests that a Catholic judge, for example, has “an automatic conflict of interest” when it comes to cases dealing with abortion. The same would hold true for an evangelical judge whose church would take action against him on the basis of his judicial decisions.
But he doesn’t stop with a call to summon Christian leaders before the Judiciary Committee. Look at this: Asking the bishops to testify would be healthy. If they rescinded the threats made against Kerry, then Roberts would feel free to make his decision without the appearance of a conflict of interest, and Catholic politicians who support Roe v. Wade would gain renewed confidence in their advocacy. If the bishops repeated or confirmed their threats, the Senate Judiciary Committee should draft legislation calling for the automatic recusal of Catholic judges from cases citing Roe v. Wade as a precedent.
Did you get that? If the bishops repeated or confirmed their threats, the Senate Judiciary Committee should draft legislation calling for the automatic recusal of Catholic judges from cases citing Roe v. Wade as a precedent. I can honestly say that I never expected a major American newspaper to give space to such a blatantly unconstitutional argument. The Constitution prohibits any religious test for public office. Given this nation’s political history, one might think that a paper located in highly-Catholic Boston would keep this Constitutional principle rather firmly in mind.
Morris isn’t finished. Of course, such a new law should cover anyone whose religion makes it impossible for them to decide on their own whether abortion should be legal; therefore, testimony should be taken from the leaders of Protestant, Jewish, Muslim, and other faiths as well. It is clear that several mainline Protestant denominations separate the issue of abortion from church membership and personal salvation; judges from these faiths would face no conflict of interest.
Since liberal denominations take a liberal position on abortion, they get a pass, along with judicial nominees who may be their members. This kind of proposed legislation would be directed only at denominations and churches that are pro-life.
Mr. Morris demands an investigation. In any case, a Senate investigation of this subject is overdue not simply because of the threats made against [Senator John] Kerry. Christian activists have won a series of court victories that allow use of taxpayer money to help finance their schools, fund their charities, and place their religious symbols in public spaces. If US taxpayers are going to subsidize activities by tax-exempt Christian organizations, they have the right to be told what constraints their followers are under while they sit in judgment of Americans who may not share their religion. When constraints amount to sanctions, impartial decisions are impossible; judges then owe Americans the duty of disqualifying themselves.
Welcome to the age of liberal panic. When their cherished ideologies and prized court decisions are threatened, they resort to a frenzy of radical defense mechanisms. Proposing that Catholic judges be required to recuse themselves from all cases that could review Roe v. Wade is a form of legal and constitutional insanity. Why stop at abortion? What about same-sex marriage, euthanasia, and the entire universe of moral and legal issues that confront the courts?
This opinion piece, published courtesy of The Boston Globe, is a wake-up call for us all. “It’s time to have this dialogue,” Morris says. “That this proposal will no doubt be controversial should not be a reason for failing to pursue it.”
No, Mr. Morris. The reason this proposal must not be pursued is that it runs into direct conflict with at least two sections of the U.S. Constitution — the First Amendment guarantee of religious liberty and Article VI, Clause 3: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Any problem understanding those words?