United States Supreme Court Building. Original image from Carol M. Highsmith’s America, Library of Congress collection. Digitally enhanced by rawpixel.
United States Supreme Court Building. Original image from Carol M. Highsmith’s America, Library of Congress collection. Digitally enhanced by rawpixel. by Carol M Highsmith is licensed under CC-CC0 1.0

Column: Religious Test for Supreme Court Seats?

U.S. Sen. Lindsey Graham, a South Carolina Republican, imposed a religious test upon the newly-confirmed Justice-to-be Ketanji Brown Jackson during her Supreme Court hearing, thus violating Article 6 of the Constitution. This begs the question of whether the subject of religion should be raised at all when someone aspires to public office.

It depends on the circumstances. Religion in America is tricky. Some religious beliefs and practices contradict the democratic values that shape our political system. A religion’s adherents will sometimes exploit religion to violate the law and twist public policy.

Graham interrogated Jackson so that a Democratic nominee would know how it feels to be grilled about their religion as was Supreme Court Justice Amy Coney Barrett, who is Catholic, when she was nominated for the court in 2020. Many people fear that Barrett and other justices will apply their religious beliefs to their rulings, but that is not the case for Jackson.

No concerns have been raised as to whether Jackson’s religious views will translate into public policy, but such concerns have been raised for Republican nominees like Barrett. She was questioned during her Supreme Court confirmation hearing about how her religion might inform her rulings as a justice, according to Politico.

In 2017, during Barrett’s hearing for a seat on the U.S. Court of Appeals for the 7th Circuit, Sen. Dianne Feinstein, a California Democrat, said, “The dogma lives loudly within you, and that is a concern.”

“It just appalls me that we can have such a system in America,” Graham told President Biden’s nominee, “that if a conservative woman wants to stand out and say, ‘I love my family just as much as you love yours, and my faith means just as much to me as it does you,’ then all of a sudden, they’re some kind of weirdo.”

Has it ever appalled Graham that ultra-religious adherents have tried to press their beliefs on others? Propping their own people onto the Supreme Court and other federal courts caps their efforts.

Come March 22, Graham violated this provision of Article 6: “No religious test shall ever be required as a qualification to any office or public trust under the United States.” Delegates to the Constitutional Convention in Philadelphia inserted this clause when the Jewish community protested proposed state legislation that would discriminate against Jewish residents.

Graham opened his questioning by asking Jackson to identify her faith, and she responded that she is a nondenominational Protestant. He then asked, “On a scale of one to 10, how faithful would you say you are, in terms of religion?”

And so, Jackson was subjected to a religious test by one of the 100 senators who was to vote on whether she is confirmed – 232 years since the court first assembled – as the first Black woman on the bench there. I have never witnessed such a spectacle on a national level.

Jackson was confirmed by the Senate by a vote of 53-47 Thursday afternoon. Three of the more rational Republican senators – Susan Collins of Maine, Lisa Murkowski (Alaska) and Mitt Romney (Utah) – joined all 50 Democrats in approving her ascent to the Supreme Court to replace retiring Justice Stephen Breyer. Jackson will officially become the latest justice after Breyer retires this summer.

I did witness this on a personal level. I was in Jackson’s spot when I was interviewed for a reporting job in central Virginia. The editor asked me to identify my religion by listing a range of denominations – Methodist? Lutheran? – that made me feel intimidated. In a muffled voice, I told him I was Jewish. He did not bother to ask if I was Orthodox or Conservative and so on.

I wish I had thought to ask him to explain the relevance of this line of questioning.

There were two differences between Jackson and myself. My personal experience with discrimination was minimal at that stage and I was isolated, while Jackson’s exposure on March 22 was so conspicuously public that Democrats immediately reprimanded Graham and a handful of other Republican senators.

“Extremely weird and uncomfortable,” tweeted attorney Madiba K. Dennie, according to Newsweek, “as Lindsey Graham asks Judge Jackson what her religion is, how often she goes to church, if she could fairly judge a Catholic, etc. This is absurd. As Jackson says, there’s no religious test in the Constitution.”

Jackson quickly reminded Graham that Article 6 prohibits a religious test, and Graham’s response was laughable: “There will be none with me.”

Huh? He already imposed a religious test.

Besides recalling that “Judge Barrett was treated very, very poorly,” Graham might have had another audience in mind: the Black community. It was likely not lost on him that she is married to a white man and he was not surprised when she identified as a nondenominational Protestant. She told the world that she is not a Baptist or a member of any other traditional African-American denomination, perhaps the result of a joint decision with her husband.

Jackson’s admission must mean, the senator inferred, that she is hardly representative of the core Black community, so African voters do not owe Democrats much of a debt at the polls. That would be a shrewd, cynical ploy to exploit religion to dampen enthusiasm for her appointment. Would anyone put it past him?

In his mind, what there is of it, Graham was justified to impose a religious test on Jackson after Democrats imposed a religious test on Barrett. But Democrats imposed no religious test. If anything, it was a qualifications test. They feared that Barrett’s religious beliefs would trump the facts and the law.

Voters who placed Republicans in the Senate seek policies to end abortion rights and return gays to the closet. They have yet to present evidence that women who seek abortions are harming society and they do not regard homosexuals and lesbians as citizens deserving the same rights as all Americans.

The late anti-abortion Justice Antonin Scalia often held up the Federalist Papers as an analysis of what the Constitution means. Not so fast. The Federalist, a collection of 85 essays, was written by Constitutional Convention delegates James Madison and Alexander Hamilton and future Supreme Court Chief Justice John Jay to respond to criticisms of the Constitution.

“Ratification” author Pauline Maier praised some elements of the Federalist, but she burst Scalia’s bubble when she wrote, “The objectives of those who wrote both to defend and to criticize the Constitution were primarily political. They wanted to get the Constitution ratified, amended or, in some cases, rejected. And that they would have to achieve on the local level, in the towns and counties where convention delegates were chosen, and then in one state ratifying convention after another.”

She noted that many essays were hastily written and published, which is evident to a reader who must do a lot of muddling through it. Madison, our future fourth president, contradicted himself over his position on the Senate’s composition. He fought it during the convention, but he tried to sell it during the ratification process.

Religion is fair game anywhere if it could affect an organization’s mission. In Jewish circles alone, should a manager in a Jewish organization hire a Jew-for-Jesus who will surely proselytize their colleagues? The applicant says he is a Jew, but we are aware that Jesus is not a presence in the Jewish religion. He was a Jew himself and was born millennia after Judaism was established.

Missing from Article 6 is an enforcement mechanism. Only South Carolina voters can punish Graham for his conduct, and that is doubtful. They have already sent him to the Senate for four consecutive terms with 54 to 57 percent of the vote each time. Future Democratic nominees for the court will just have to prep for more religious tests.

About Bruce Ticker

Bruce S. Ticker, who writes from Philadelphia, also blogs for The San Diego Jewish World and Smirking Chimp and previously for the suspended Philadelphia Jewish Voice. He was previously a reporter and copy editor for daily newspapers in eastern Pennsylvania.

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