Constitution Check: Does the Constitution require voters not to debate and consider candidates’ religion?
In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: the faith preferences of presidential candidates.
The statement at issue:
“Over the past several days, talk show hosts have lectured me about Article VI of the Constitution, which prohibits religious tests for public office, as if considering a candidate’s faith is somehow unconstitutional, un-American or even illegal. How ludicrous. This is a not-so-subtle attempt to eliminate through intimidation religion as a suitable criterion by which to choose a candidate. The Constitution is referring to religious litmus tests imposed by government, not by individuals.”
- Comment by the Rev. Robert Jeffress, pastor of the First Baptist Church of Dallas, in an op-ed column in The Washington Post, “Why a candidate’s faith matters,” October 18, 2011. His column was a response to the criticism he drew for a remark suggesting that Mormonism, the faith of presidential candidate Mitt Romney, is “a cult.”
We checked the Constitution, and…
The Reverend Jeffress is right about the Constitution as a check only upon government. Its prohibitions do not restrain purely private behavior. That is true, then, for the third clause of Article VI (part of the original document), which states flatly that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”
The Founders were entirely familiar with the history of the Stuart kings in England, in particular, who maintained the “test acts” to require public office-holders to take part in the sacraments of the Anglican Church, the officially established church. (The discriminatory intent of such oaths was abundantly clear in the title of the Test Act of 1678 in the reign of Charles II: “An Act for the more effectuall preserving the Kings Person and Government by disableing Papists from sitting in either House of Parlyament.” [original spelling] Those who wrote the U.S. Constitution wanted no part of that tradition.
The Texas clergyman, though, was a bit misleading in another comment in his Washington Post column. He referred to a remark attributed to John Jay about the duty of those in “our Christian nation” to “select and prefer Christians for their rulers.” The Rev. Jeffress noted that John Jay was “the first chief justice of the Supreme Court and co-author of the Federalist Papers.” Jay, however, made that comment in 1816, 15 years after he had retired from public life and during a retirement in which he became president of the American Bible Society. (Incidentally, the Chief Justice’s title is “of the United States,” not “of the Supreme Court.”)
In Federalist Papers 10 and 51, authored not by John Jay, but by James Madison (the Founder known as the father of the Constitution” ), Madison celebrated the virtue of “religious diversity” which he said would be assured by the competition of a “multiplicity of the sects.”
Another early Chief Justice, Oliver Ellsworth of Connecticut (who also was a delegate to the Constitutional Convention in Philadelphia), was a devout Christian but was vigorously opposed to religious tests or oaths, arguing that they were a threat to religious liberty.
Again, however, it bears emphasis that the Constitution’s Article VI has nothing directly to say about the standards or values that a political party’s members may prefer to apply when they select a nominee to seek the U.S. Presidency. Although the parties’ national conventions are linked to a distinctly governmental process — the general election, the conventions themselves and their delegates are private matters, and thus are not bound to observe the ban on religious tests.
The Constitution, indeed, would not impose any objection if a party convention were to choose an avowed atheist to serve in the White House, nor would it require an atheist elected to the Presidency to add “so help me God” to the presidential oath. The Constitution does impose a duty on a newly elected President to take an oath, but in a gesture of religious neutrality, it allows the new Chief Executive to choose between saying “I swear” and “I affirm.”
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.