True God of the Next Justice

For a decade or more, American constitutional discourse has emitted a detectable odor of bigotry toward Roman Catholics who embrace the papal encyclicals of Pope John Paul II. The reason is the Supreme Court's politically dominant role on questions of abortion. An unconstitutional litmus test may be emerging against Roman Catholics who obey the Pope's encyclicals and against those of other faiths who similarly oppose abortion as a matter of religious belief. The acrimony over abortion has obscured the relevance of the Religious Test Clause of the Constitution to the nomination and confirmation of Supreme Court Justices. It is both intractable and improper for senators to question a judicial nominee about either the tenets of his religious sect or the intensity of his religious devotion. As a practical matter, however, this prohibition is easily evaded, and no judicially enforceable public sanction or private remedy appears to exist. Unless the Senate is prepared to punish such misconduct—a highly doubtful proposition—the Constitution's explicit textual prohibition against religious tests for officeholders will be gutted in the name of advancing a more politically popular constitutional right that is not found in the text of the Constitution.

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