Man Without Qualities

Thursday, July 24, 2003

No Religious Test Shall Ever Be ...

Article VI of the United States Constitution provides in part:

The senators and representatives before-mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

But a good many people sitting in the United States Senate seem to have forgot the spirit - and maybe the letter - of that provision:

A judicial confirmation hearing yesterday turned into a rancorous debate between Democrats and Republicans over whether it's possible for a devout Catholic to be confirmed to the federal bench.

The federal courts will not normally intervene in a case of internal Congressional process and rules - such as a filibuster. But there have been exceptions, as in the case of Adam Clayton Powell, Jr.:

On January 9, 1967, the House Democratic Caucus stripped Powell of his committee chairmanship. Furthermore, the full House refused to seat him until completion of an investigation by the Judiciary Committee. The following month, the committee recommended that Powell be censured, fined, and deprived of seniority, but on March 1 the House rejected these proposals and voted 307 to 116, to exclude him from the Ninetieth Congress. Powell won a special election on April 11, 1967, to fill the vacancy caused by his exclusion, but did not take his seat. He was reelected to a twelfth term in the regular November contest, but the House voted to deny him his seniority. Powell declined to take his seat when the Ninety-first Congress convened in January 1969. In June 1969 the Supreme Court ruled that the House had acted unconstitutionally when it excluded him from the Ninetieth Congress, and Powell finally returned to his seat albeit without his twenty-two years' seniority.

If a filibuster is indeed motivated by anti-Catholic animus, Article VI would appear to permit - even require - judicial intervention in Senate processes. And, of course, there is always the First Amendment. The point would seem to be particularly pertinent here because the Catholic Church's position was established and well understood long before the Supreme Court's decision in Roe v. Wade that created an new constitutional right.

In expanding the Constitution to contradict the teachings of long-established religious sects, is the Supreme Court reducing the ability of religious people from those sects to serve in the federal government by allowing Senators to impose religious tests expressly forbidden by the plain text of Article VI under the guise of "protecting Constitutional rights" in a filibuster?

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