I listened to the opening statements of Senators in the confirmation hearing of Judge Amy Barrett for a seat on the U.S. Supreme Court and the judge's opening remarks.
Democratic Senators exclusively focused their remarks on the Affordable Care Act (ACA) and Judge Barrett's opposition to it. Notably, they avoided commenting on her faith based speeches, writings and judicial opinions that are constitutionally problematic.
Democratic Senators also avoided the shameful hypocrisy of those who invoke the No Religious Test Clause of Article VI of Constitution.
Clause 3 of Article VI states in part: "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." In reality, it's as if there are "No Atheists" plaques at the entrances of Congress, the White House and the Supreme Court. Religious affiliation allows one to get in line, without it you need not apply.
As an Atheist, I strongly support the No Religious Test Clause (when coordinated with the Establishment Clause). Unfortunately, religious tests are often the standard, not the exception. For example, Christian privilege has eviscerated the clause with politicians ending their speeches with "God bless America and God bless the United States of America."
It is important to note that the clause does not exist in isolation. The clause must be balanced with the Establishment Clause of the First Amendment. The Establishment Clause prohibits government from preferring one religion over another, or religion over nonbelief
Judge Barrett's nomination raises a conflict between the two clauses. Do her religious views disqualify her from a seat on the Court? "Views," religious or not, do not disqualify a nominee from an appointment to the Court. However, using religious views to decide one way or another would. Of particular concern is Judge Barret's view of Roe v. Wade and whether her Catholic faith would be the impetus for her voting to overturn Roe.
President Trump has said a number of times that he has a litmus test for nominating a justice to the Supreme Court. Specifically, Trump has said that he would not nominate a person who supports either Roe v. Wade or the Affordable Care Act. Because opposition to Roe (abortion) and the ACA (birth control) is based on religious tenets of the Catholic Church and certain other religions, Trump's nomination of Judge Barrett, in my opinion, violates the No Religious Test Clause because Trump used a religious test to choose her.
With respect to those Senators who oppose Judge Barrett's nomination on the basis of her speeches, writings and judicial opinions because they sincerely believe that a Justice Barret will use her position on the Court to advance her Catholic faith in violation of the Establishment Clause -- those objections are appropriate and not a violation of the No Religious Test Clause because Barrett's nomination itself is a violation of the clause.
Indeed, failure to reject Barrett's nomination would mean that the Senators lack fidelity to the Constitution to protect and defended the Constitution against people like Judge Barrett (and the late Justice Scalia) whose Catholicism, when implemented thru her rulings, would undermine the Establishment Clause and our religious freedom.
By: Robert V. Ritter, Founder, Jefferson Madison Center for Religious Liberty, October 12, 2020
