‘No Religious Test Shall Ever Be Required’

SEN. MITCH McCONNELL (R-KY): “President Trump has done a terrific job of nominating judges who are already helping to restore the courts to their intended function in our system of government. … Amy Barrett is a professor of law at one of our nation’s premier law schools. Notre Dame happens to be a Catholic university. Amy Barrett happens to be a nominee who is Catholic--and who speaks freely and openly about her faith and its importance to her. For some on the Left, that seems to be a disqualifying factor for her nomination. I would remind colleagues that we do not have religious tests for office in this country.” (Sen. McConnell, Floor Remarks, 10/26/2017)

U.S. CONSTITUTION: “…no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” (U.S. Constitution, Article 6)

  • AMY BARRETT: “Senator, I see no conflict between having a sincerely held faith and duties as a judge. In fact, we have many judges, both state and federal, across the country who have sincerely held religious views and still impartially and honestly discharge their obligations as a judge. And were I confirmed as a judge, I would decide cases according to rule of law, beginning to end, and in the rare circumstance that might ever arise -- I can't imagine one sitting here now -- where I felt that I had some conscientious objection to the law, I would recuse.” (Judiciary Committee, U.S. Senate, 9/6/2017)

Democrat’s Religious Questions ‘Strange,’ ‘Troublesome,’ And ‘Disturbing’

SEN. MIKE LEE (R-UT): “The [Constitutional] Convention had voted unanimously to ban religious tests for Federal office. The language the Framers inserted into the Constitution was unequivocal upon this point. It said that ‘no religious test shall ever be required as a qualification to any office or public trust under the United States.’ When the Founding Fathers wrote the word ‘ever,’ they meant it. That word means something in the Constitution, and we need to protect it. I feel the need to stress this point because of the conduct of some of my colleagues. … This is disturbing. This is not what the country is supposed to be about—some sort of inquiry into one’s religious beliefs as a condition precedent for holding public office in the U.S. Government. These strange questions have nothing to do with the nominee’s competence, patriotism, or ability to serve among and for Americans of different faiths equally. In fact, they have little to do with this life at all. Instead, they have to do with the afterlife—what comes after we die in this life. To my knowledge, the OMB and the Seventh Circuit have no jurisdiction over that.” (Sen. Lee, Congressional Record, S.5042, 9/7/2017)

SEN. JEFF FLAKE (R-AZ): “I rise today to discuss how we allow religious believers to participate in public life. From the founding of our country, religious believers have played a central role in our government. The Declaration of Independence was signed by a Presbyterian minister, John Witherspoon, and Charles Carroll, the cousin of our first Catholic bishop. The importance of religious participation was in the air the Founders breathed, and the benefits religious believers of all backgrounds contributed to the common good was understood by the Framers of the Constitution. That is why they made it clear in article VI of the Constitution that no public officers could be subject to a ‘religious test.’ This new country wouldn’t be a country for Anglicans or for Congregationalists or for Quakers; it would be a country for all Americans and all faiths—all of those who are committed to the Constitution and the common good. Unfortunately, the religious test clause is no longer just the subject of history lessons. During this Congress, there have been a number of cases where my friends in the minority have seemed to ask nominees about their substantive religious beliefs. I find this particularly troublesome… I sincerely hope this body will step back from this dangerous ledge and evaluate Professor Barrett based on her impeccable qualifications, not where she attends church.” (Sen. Flake, Congressional Record, S.6250, 10/2/2017)

SEN. BEN SASSE (R-NE): “[Mrs. Barrett] I think some of the questioning that you've been subjected to today seems to miss some of these fundamental constitutional protections that we all have.” (Judiciary Committee, U.S. Senate, 9/6/2017)

Some Questions Were ‘So Reckless, That It Amounts To Anti-Religious Bigotry’

The term “Catholic” was used in discussions with Amy Barrett 27 times during the course of the judiciary hearing. (Judiciary Committee, U.S. Senate, 9/6/2017)

ROHRAB AHMARI, Commentary Magazine: “Witness last week’s Senate confirmation hearing for Amy Coney Barrett, a law professor at Notre Dame whom President Trump has nominated to serve on the 7th Circuit Court of Appeals. Going far beyond questions of legal philosophy and qualification, several Democratic lawmakers interrogated Ms. Barrett about her devout Catholicism, suggesting that her faith would impede her ability to serve as a judge. ‘Do you consider yourself an ‘orthodox Catholic’?’ asked Dick Durbin of Illinois, himself a Catholic, taking issue with Ms. Barrett’s use of that term to describe those who strive to align their lives fully with the Church’s teachings. Mazie Hirono of Hawaii darkly insinuated that Ms. Barrett would apply Catholic morality to decide cases. But Dianne Feinstein of California took things furthest. ‘Dogma and law are two different things,’ she said. ‘And I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern.’… The notion that Catholics are so beholden to Rome as to be incapable of rendering independent judgment in public office has a long, sordid history. It was a mainstay of 19th-century nativist propaganda, and it would dog John F. Kennedy in the following century.” (Sohrab Ahmari, Op-Ed, “The Dogma Of Dianne Feinstein,” The New York Times, 9/11/2017)

NATIONAL REVIEW ONLINE: “…during a confirmation hearing for 7th Circuit Court of Appeals nominee Amy Coney Barrett, Democratic senator Dianne Feinstein attacked the nominee for her Roman Catholic faith. … Feinstein launched a thinly veiled attack on Barrett’s Catholic faith, asserting that her religious views will prevent her from judging fairly.” (“Dianne Feinstein Attacks Judicial Nominee’s Catholic Faith,” National Review Online, 9/6/2017)

WASHINGTON POST’S ‘THE FIX’: “Did Dianne Feinstein accuse a judicial nominee of being too Christian? … on Wednesday, Sen. Dianne Feinstein (Calif.) said a judicial nominee's adherence to ‘dogma’ was ‘of concern’ to her.” (“Did Dianne Feinstein Accuse A Judicial Nominee Of Being Too Christian?” The Washington Post’s The Fix, 9/7/2017)

REV. JOHN JENKINS, Notre Dame President: “Dear Senator Feinstein… Your concern, as you expressed it, is that ‘dogma lives loudly in [Professor Barrett], and that is a concern when you come to big issues that large numbers of people have fought for years in this country.’ I am one in whose heart ‘dogma lives loudly,’ as it has for centuries in the lives of many Americans, some of whom have given their lives in service to this nation. Indeed, it lived loudly in the hearts of those who founded our nation as one where citizens could practice their faith freely and without apology. …It is chilling to hear from a United States Senator that this might now disqualify someone from service as a federal judge. I ask you and your colleagues to respect those in whom ‘dogma lives loudly’—which is a condition we call faith. For the attempt to live such faith while one upholds the law should command respect, not evoke concern.” (“Letter From Rev. John I. Jenkins, C.S.C. To U.S. Sen. Dianne Feinstein,” Notre Dame News, 9/9/2017)

NOAH FELDMAN, Harvard Law School Professor: “Feinstein's Anti-Catholic Questions Are an Outrage… Senator Dianne Feinstein owes a public apology to judicial nominee Amy Coney Barrett … If a Catholic senator had asked a Jewish nominee whether she would put Israel before the U.S., or if a white senator had asked a black nominee if she could be an objective judge given her background, liberals would be screaming bloody murder. Feinstein’s line of questioning, which was taken up by other committee Democrats, is no less an expression of prejudice. … When public figures try to excuse the invocation of anti-Semitic or racist stereotypes by saying they didn’t understand the implications, we tend not to be very forgiving.” (Noah Feldman, Op-Ed, “Feinstein's Anti-Catholic Questions Are An Outrage,” Bloomberg, 9/11/2017)

CHRISTOPHER EISGRUBER, Princeton University President: “Article VI’s prohibition of religious tests is a critical guarantee of equality and liberty, and it is part of what should make all of us proud to be Americans. By prohibiting religious tests, the Constitution makes it impermissible to deny any person a national, state, or local office on the basis of their religious convictions or lack thereof. Because religious belief is constitutionally irrelevant to the qualifications for a federal judgeship, the Senate should not interrogate any nominee about those beliefs. I believe, more specifically, that the questions directed to Professor Barrett about her faith were not consistent with the principle set forth in the Constitution’s ‘no religious test’ clause.” (President Eisgruber, Letter To Sens. Grassley & Feinstein, 9/8/2017)

MICHAEL GERSON: “[Amy Coney Barrett’s] questioners displayed a confusion of the intellect so profound, a disregard for constitutional values so reckless, that it amounts to anti-religious bigotry.” (Michael Gerson, Op-Ed, “Senate Democrats Show Off Their Anti-Religious Bigotry,” The Washington Post, 9/14/2017)

JOHN GARVEY, President Catholic University of America: “I never thought I'd see the day when a coalition of left-wing groups attacked a Republican judicial nominee for opposing the death penalty.” (John Garvey, Op-Ed, “Amy Barrett, A Faithful Judge,” Washington Examiner, 9/7/2017)

  • “Amy Barrett, a law professor at Notre Dame, was grilled on Wednesday by Democrats on the Senate Judiciary Committee about an article she and I wrote together in 1998 when I was a law professor and she was my student. In that article we argued that the death penalty was immoral, as the Catholic Church teaches (in common with Quakers, Episcopalians, Presbyterians, Methodists, and the 38 member communions in the National Council of Churches). We went on to say that a Catholic judge who held that view might, in rare cases, have to recuse herself under 28 U.S.C. § 455. That is a federal statute that asks a federal judge to step aside when she has conscientious scruples that prevent her from deciding a case in conformity with the facts and the law. Catholic judges are not alone in facing such dilemmas.” (John Garvey, Op-Ed, “Amy Barrett, A Faithful Judge,” Washington Examiner, 9/7/2017
  • “Perhaps the Alliance for Justice, which has mounted a campaign to discredit Prof. Barrett, didn't get that far in reading the article. Its website says this: ‘Stunningly, Barrett has asserted that judges should not follow the law or the Constitution when it conflicts with their personal religious beliefs. In fact, Barrett has said that judges should be free to put their personal views ahead of their judicial oath to faithfully follow the law.’ Barrett (and I) said no such thing. We said precisely the opposite.” (John Garvey, Op-Ed, “Amy Barrett, A Faithful Judge,” Washington Examiner, 9/7/2017)
  • “Senators Durbin, Hirono, and Feinstein seemed particularly troubled by Barrett's Catholicism… I suspect what really troubled them was that, as a Catholic, her pro-life views might extend beyond criminal defendants to the unborn. If true, the focus on our law review article is all the more puzzling. After all, our point was that judges should respect the law, even laws they disagree with. And if they can't enforce them, they should recuse themselves. A proponent of liberal abortion policy should want a judge like that. At least on the court of appeals.” (John Garvey, Op-Ed, “Amy Barrett, A Faithful Judge,” Washington Examiner, 9/7/2017)

SEN. FEINSTEIN: ‘Professor… The Dogma Lives Loudly Within You’

SEN. DIANNE FEINSTEIN (D-CA): “Why is it that so many of us on this side have this very uncomfortable feeling that, you know, dogma and law are two different things? And I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, Professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you.” (Judiciary Committee, U.S. Senate, 9/6/2017)

SEN. DICK DURBIN (D-IL): “Do you consider yourself an orthodox Catholic?” (Judiciary Committee, U.S. Senate, 9/6/2017)

SEN. MAZIE HIRONO (D-HI): “So in spite of the fact that you had written in an earlier article that Catholic judges -- and you would be a Catholic judge -- you would not recuse yourself from death penalty cases? … Ms. Barrett, I think your article is very plain in your perspective about the role of religion for judges, and particularly with regard to Catholic judges.” (Judiciary Committee, U.S. Senate, 9/6/2017)


Related Issues: First Amendment, Judicial Nominations, Senate Democrats, Defending Life, Nominations