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No Clause For Religious Tests


Alexandra McPhee, attorney and Director of Religious Freedom Advocacy for Family Research Council. McPhee discusses her recent publication, “Rebels Without a Clause: When Senators Run Roughshod Over the ‘No Religious Test’ Clause of the U.S. Constitution,” which addresses the recent trend of some U.S. Senators employing seemingly religious tests on nominees for public office. She also examines the parameters of the “No Religious Test” clause, and why our Founding Fathers sought to include it in our Constitution.

Alexandra McPhee discuses religious tests

Family Policy Matters
Transcript: No Clause For Religious Tests

TRACI GRIGGS: Thank you for joining us for Family Policy Matters. I’m Traci DeVette Griggs, Communications Director at NC Family, sitting in this week for John Rustin. If you’ve watched some of the recent confirmation hearings, you’ve likely been disturbed by questions about religion that were posed to the candidates, and suggestions by senators that faith and religion might disqualify that candidate from consideration. Of course, this flies in the face of the U.S. Constitution. Well, Alexandra McPhee is also disturbed by this trend. She is an attorney who is director of Religious Freedom Advocacy at Family Research Council in Washington DC. In response, she wrote a document showing just how big a problem this has become. It’s called “Rebels Without a Clause: When Senators Run Roughshod Over the ‘No Religious Test’ Clause of the U.S. Constitution.” Alexandra McPhee, welcome to Family Policy Matters. 


TRACI GRIGGS: Start off by explaining what compelled you to write this report.

ALEXANDRA MCPHEE: This report came about after we noticed a trend emerging from many of the Senate confirmation hearings. Several other individuals and organizations had commented on the inappropriate line of questioning emerging from the confirmation hearings of nominees because of their religious beliefs, or congregation membership, or affiliation with faith-based nonprofits. After we started this publication, it turned out that the issue is still ongoing. Naomi Rao, who was a judicial candidate for a position on the DC Court of Appeals, was interrogated by Senator Cory Booker during her confirmation hearing about her views on homosexuality. So, we really thought it was a signal that this was something that people needed to hear. Because it was not only a trend in the past, but something that could very well continue into the future […]. So, we were really glad we were able to pick up on this and really thought that this would be something that could be useful for voters come 2020 when they go to the voting booths. This shouldn’t be something that should just be swept under the rug. We really need people to get the word out and to make sure that everyone knows that it’s completely unacceptable to question someone’s religious beliefs in order to determine whether they’re qualified for public office. We’re hoping that this can be a tool and something that ideally we’ll use as a reference point for a trend that we see about the role of faith in not only our political process, but in government as well.

TRACI GRIGGS: Tell us about this report. What will that do for us?

ALEXANDRA MCPHEE: This report, it describes ten incidents where senators have interrogated nominees about either their theological views, their congregation memberships, or their associations with faith-based nonprofits. It started in 2017 when Senator Sanders asked questions of a nominee for the Office of Management and Budget about private writings that he wrote in response to a controversy from his Alma Mater—which was faith based—and the theological questions involved in that. Senator Sanders used it as a launching point to label the nominee as incapable of public office because he held certain beliefs about his faith—Christianity—and because the nominee had the audacity to say: Christians will only receive salvation if they accept Jesus Christ as savior. It didn’t stop there. Over the next two years, senators have been asking nominees questions about the categories that I mentioned. So, we list every incident that we found either in the actual confirmation hearing in the exchanges between senators and the nominee, or in written questions that were submitted by the senator to the nominee. And what readers will also find is a brief discussion of the “No Religious Test” clause. That clause comes from Article 6 of the Constitution. We discuss how senators should be approaching their questioning in order to not only get what they might want out of those questions, which is “Well, how do I know this nominee is able to faithfully carry out his or her duties?” While also maintaining consistency with the text of the Constitution.

TRACI GRIGGS: Can you talk a little bit more about that “No Religious Test” clause, specifically what that says?

ALEXANDRA MCPHEE: The clause says that no religious test shall ever be required as a qualification to any office or public trust. And it came into the public spotlight in the 1900’s when an individual pursued public office in Maryland, but did not want to make an oath to God. But the Supreme Court said that the Maryland Constitution, which required this affirmation, was unconstitutional, that the action was unconstitutional. The Supreme Court actually used the First Amendment to decide that question and did not address the actual “No Religious Test” clause, Article 6. So, it’s probably why we haven’t heard a lot about it because it’s essentially been swallowed up by the First Amendment. However, it is an important indicator of what the Founders wanted in the policy that they held about religion and the role it played in public office. And as Senator Chuck Grassley, when he was serving as chairman for the Senate Judiciary Committee, one of the most important founding principles is that one should be deemed qualified based on their demonstrated ability, not their religious affiliations. That demonstrated ability is what was really key for the Founders because what they wanted was action, and that was most important to them. So that’s why this “No Religious Test” cause appears in the Constitution—because they knew that potential individuals for public office might be able to talk the talk, but they couldn’t necessarily walk the walk just by saying a couple of words.

TRACI GRIGGS: So, does that mean that nominees can never be asked anything about their personal religious beliefs and motivations?

ALEXANDRA MCPHEE: No, nominees must be able to carry out their duties in whatever office they pursue, and merely asking a nominee, as one commentator said, about whether their beliefs might stop them from fulfilling their Constitutional duties, is a relevant question, and that’s appropriate. That is not what we’re seeing with these confirmation hearings from senators. The senators are using questions specifically about the nominees’ beliefs tied to their faith in order to determine whether they are fit or unfit, and using their responses as a qualifier or disqualifier, as Senator Mike Lee noted, for public office. And the senators are doing so in a way that really demonstrates a lack of integrity, and even the questioning process. With that in mind, it really shows that the senators aren’t interested in pursuing the truth, even though there are appropriate ways to make sure that a nominee is able to fulfill their official duties. What they’re doing is trying to say that someone’s religious belief in the sanctity of life, of marriage, is something that will be a qualifier or disqualifier for their ability to carry out their public duties.

TRACI GRIGGS: So, Alexandra, why do you think this has come about? Why, when religious faith has always been historically a desirable and positive attribute for public service, why is it now considered by some to be a disqualifier, do you think?

ALEXANDRA MCPHEE: What these senators are doing is seeking political gain. All of these questions center around issues related to same-sex conduct, same-sex marriage. They relate to the so-called ‘right to abortion.’ In many cases, if not all, the senators will ask the nominee about their faith-based organizations, about comments made by their pastor from their church, because of statements that may go against what they insist it should be the orthodox view of the LGBT community, or the abortion rights community. So, because many faiths are against anything that goes against the sanctity of marriage or life, it’s really being used as leverage to try and paint nominees as discriminatory and incapable of carrying out their duties, which is just completely untrue.

TRACI GRIGGS: I’m assuming that you would think that this should absolutely not dissuade voters, individual voters, from taking into consideration the religious faith of candidates for office when they vote for them?

ALEXANDRA MCPHEE: Absolutely. And what we know is that when one carries their faith into their official capacity, it’s important because faith is what tells us to be honest, to have integrity. And it is an important component of one’s worldview to the extent that so often religions demand a higher standard of conduct, so voters should keep this in mind. The issue is when senators are using religious affiliation alone as a qualifier, and what really matters is a person’s conduct. We know that faith and religion demand certain things and demand a higher quality of conduct. But what we know about faith and about people, is something that the voters can use, but senators cannot abuse.

TRACI GRIGGS: Talk a little bit about how this is going to affect people who are genuine believers, who have a genuine faith. What will these attacks on people of faith, and Christians, do to the likelihood of these individuals going into public service?

ALEXANDRA MCPHEE: One of the underlying ideas of these questions is that faith is incompatible with public office, or it needs to be put aside. It’s the idea that one’s religious beliefs can only be exercised in the home or house of worship, but nowhere else. And it really puts faith in a box. And that’s just not what believers are called to do. And it’s not what our Founders wanted. The First Amendment of the Constitution says you have the right to the free exercise of religion, and they aren’t saying that you have the right to believe whatever is between your ears. Anyone can guarantee that; China can guarantee that, all of the governments hostile to religious freedom around the world can give you that. And as a result, demanding that someone put aside their religious beliefs for public office in order to—what they claim—allow them to carry out their public duties, is just anathema to what we have been given. Not only by God the ability to believe and act and our beliefs, but what the Constitution recognizes and wanted to protect from government interference. So, what this does is perpetuate the idea that religion does not have a place in the public square, but that’s not true. We know that someone of faith carries out their beliefs into every aspect of their life, including their profession. Whenever a nominee goes up before a group of senators and is interrogated about their beliefs, that’s no different from someone going to a job interview and being asked, completely unrelated to that: What are your views on homosexuality? What are your views on abortion? Does that mean you’re going to XYZ? And it’s completely inappropriate because it implies that your beliefs about something will affect how you treat someone, that you’ll treat them negatively because of the fact that they don’t conduct themselves according to how you believe your faith demands that you conduct yourself. But that’s not what faith does. It commands a love towards others; Christianity commands love towards others. So to imply that it’s incompatible with public office really creates an unhealthy belief in faith and its role in the public square for believers and should be rebuked.

TRACI GRIGGS: Good. We are just about out of time for this week, so before we go, Alexandra, where can our listeners go to read your report, “Rebels Without a Clause,” and learn more about all the good work that the Family Research Council does?

ALEXANDRA MCPHEE: They can go to 

TRACI GRIGGS: Alexandra McPhee, thank you so much for being with us today on Family Policy Matters. 

ALEXANDRA MCPHEE: Thank you so much. 

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