How lawmakers can distinguish real versus phony religious tests for judicial nominees

A number of years ago, I sat on a long plane ride next to an orthodox Jewish man. We struck up a conversation and found out that we each had three children. I have three daughters, while he told me he had two daughters and a son. When I told him I was a law professor, he told me with delight that both of his sons had expressed some interest in going to law school. I asked him about his daughter and he said that she would, of course, be a wife and mother and take care of the home.

I expressed surprise at this (naive, I know) and asked him what his teen daughter thought about these differing expectations based on gender.

The man said that she didn't have a choice but in any event, his daughter was quite comfortable with this life plan.

I asked him if I could speak freely and he kindly responded in the affirmative. I asked how he could justify limiting his daughter this way, especially in light of how proud he sounded about his sons wanting to be lawyers. His response was that this is the way they live, it works, and he saw no need to alter this lifestyle for his daughter.

Here is my question: if this man were nominated to be a federal judge, should his views on gender disqualify him from the position?

The judicial outcomes of sincere belief

Before turning to that question, let's agree on one thing.

A federal judicial nominee who in a confirmation hearing testified that he did not think women should be CEOs, senators, lawyers or bankers – because their proper place is in the home and that we would all be better off with more precise gender roles – would not be confirmed.

Does the calculus change if the nominee testifies exactly the same way but says his views are based on sincere religious faith?

Hold that question.

The US Constitution provides in no uncertain terms in Article VI that "no religious test shall ever be required as a Qualification to any Office or public trust under the United States."

I am glad we have this provision. No one should ever be asked about their faith as a precondition for Senate confirmation as a federal judge.

But does Article IV prohibit all questioning about a nominee's views that are part of his faith? The answer to this, I think, has to be no.

If it were part of a person's sincere religious faith that sometimes children have to be sacrificed to the gods in cases of terrible climate events, it would be more than fair to disqualify that person from holding judicial office based on that opinion irrespective of its basis.

If a nominee said his faith requires him to believe that white and Black school children should never go to school together, he too should not become a judge, not because of faith, but because of his racist views.

Test of religion or character?

So returning to my orthodox Jewish friend:

If he testified that he believed the only legitimate career path for girls and women is to be wives and mothers, and he was rejected for holding that view, is that a religious test for public office?

I think the answer has to be no. He would not be rejected for his faith, ie, his views on the afterlife or membership in a religious group. He’d be rejected because of values he holds that affect the secular world.

What if the nominee who holds these kinds of sexist or religious views says he can and will put them aside when deciding cases?

At first that may seem like a more difficult question, but is it?

Imagine a nominee who says that his personal views are that white people are superior to Black people, and that men are superior to women, but that he would put aside those views in his role as a judge.

Could and should that person be given a federal judgeship?

Of course not.

Views of faith, views of public office

Now imagine that the racist and sexist views above are expressed as part of a wholesale and sincere religious belief system.

Does and should that matter?

I don't think so. There is no reason to think a religious bigot will be any more capable than the secular bigot of discarding his personal views.

Moreover, do sexism and racism become more tolerable because they are based on religious, not secular, ones? I don't think so.

This is not to say that the government should interfere in the internal affairs of religious organizations that hold such views. That is quite a different question. In most contexts, the answer should be no.

But the government not interfering with religious activities and the government requiring people to not hold racist and sexist beliefs as a prerequisite to public office are very different things indeed.

I think it would be fair to say to my orthodox Jewish friend that his views on the proper role for girls and women disqualify him from being a judge, just as he would be disqualified if he believed white people and Black people should be separated under law even if he says that's only a personal, religious view that he can set aside as a judge.

Applied to Roe

Now imagine a nominee who said her faith teaches her that life begins at conception and that abortion must be banned at all times and in all places with no exceptions, and she would not put aside those views when deciding abortion cases and would not recuse in such cases.

Would her rejection be the same as a religious test for public office?

I think we would all agree the answer is no.

What if she said that she would put aside those religious views when deciding cases? Would her disqualification be illegal as a religious test for public office by pro-choice senators? I don't think so.

Her rejection would be based on her views about abortion, not her association with a particular religion.

In other words, to disqualify a person based on a view that they happen to hold because of their religion, when one would also disqualify a person who held the same view based on secular premises, is not imposing a religious test for public office.

Imagine the following dialogue.

Senator:

Professor Smith, I want to ask you whether you agree with your church's position that women cannot be leaders in your church. Do you agree with that rule?

Professor Smith:

No Senator, I do not. I am proudly (name a religion) but I do not agree with all of the policies and rules of my religious leaders and that is one I do not agree with. However, I want to add that I am also a proud American and I do not agree with many of President Biden's policies. But I can no more shed my Americanism than I could shed my _ism.

I think we can all agree that this church's position on women should not disqualify this nominee.

Imagine a different dialogue.

Senator:

Professor Smith, I want to ask you whether you agree with your church's position that women cannot be leaders in your church. Do you agree with that rule?

Professor Smith:

Yes I do, Senator. I would not allow that view to affect my decisions as a judge, including in gender-related cases, but I do agree with my church that women should not be leaders in the church.

Proper or improper questions about religion

Before the answer, let's remember a person who said he thinks the world would be a better place if women (or Black people) were excluded from being mayors, governors, CEOs, judges and presidents would surely not be confirmed and surely shouldn't be confirmed.

Of course, that hypothetical isn't the same because a church is different from the government or a private organization.

But is the view that women (or Black or LGBT-plus people) shouldn't lead any less pernicious because it's based on faith, not secular values?

I think the answer might depend on the reasons the nominee gives for her agreement that women (or Black or LGBT-plus people) should be excluded from leading whichever faith she is associated with.

But would such a line of questioning be improper?

I think not.

If that’s true, questions about a nominee's views on abortion should be proper, regardless of whether from faith, reason or something else.

If a Senator believes women can never be equal without control of their reproductive destinies, or if a Senator believes that abortion is always murder, then asking prospective judges about their views on abortion, or any other issue with secular consequences should be allowed. It is not barred as a religious test for public office.

So long 'stare decisis' – we hardly knew ye

The Supreme Court has confirmed that the draft opinion overturning Roe v. Wade and Planned Parenthood v. Casey is authentic, but, like all drafts, might change before it is final. Below are a few observations.

If the final opinion is substantially the same as the draft one, the tone is egregious and full of hubris. Reasonable people can disagree about whether the right to abortion should be protected by the Supreme Court. But the dismissive rhetoric by Justice Samuel Alito of the reasoning in both Roe and Casey is unnecessary and hateful.

There are ways to write an opinion overturning those landmark cases that are sensitive to both sides. The draft is not such an opinion. If unchanged, it will further increase polarization on this difficult issue.

The opinion reads more like a dissent by the late Justice Antonin Scalia or an inflammatory argument of a media pundit than a Supreme Court opinion dealing with the most difficult of topics.

By using “unborn human beings” and similar rhetoric, the court may be laying the groundwork for future courts to strike down abortion protections in blue states, a calamity beyond imagination.

The draft opinion's discussion of the history of abortion law does not accurately reflect our country's real struggles with this issue.

Abortions before quickening were not illegal in America as a general matter before the mid-19th century. So much for serious originalism.

As Mike wrote today in a Verdict column, this draft opinion is likely just the beginning of major changes in constitutional doctrine. He said:

The Alito draft … distinguish[es] the abortion right from the rights recognized in the cases on which Roe and Casey rely. Crucially, Roe and Casey do not rely on Lawrence or Obergefell, as both of those rulings post-date Roe and Casey. The not-so-subtle implication is that the court stands prepared to overrule Lawrence and Obergefell.

What this means, and what I have been saying for a while, is that the court's striking down of state same-sex marriage bans in Obergefell, and federal bans in Windsor, may well be overturned by the court.

Chief Justice Roberts ended his dissent in Obergefell by saying:

If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

I have always thought Roberts wrote the last two sentences that way so he would feel justified in reversing Obergefell some day.

I fear for the LGBT-plus community in the US, as that case may be coming sooner rather than later either by the Supreme Court or ambitious Donald Trump appointees to the lower federal bench.

Assuming the draft opinion becomes the law of the land, one does not have to be a hardcore legal realist to understand and appreciate its major implications for the role of stare decisis at the Supreme Court.

Throughout the 1980s and up to the Casey decision, the federal government expressly asked the court to overrule Roe altogether.

The court ducked the issue. Then, in Casey, it said it was not going to reverse Roe despite those efforts expressly on the basis of stare decisis.

It was that reasoning that led many to label Casey a "super-precedent." Alito’s draft opinion throws all that away with language more appropriate to a political campaign than a judicial opinion.

But if the court can reverse a "precedent on precedent" in one of the most important cases, is any precedent meaningful? I think not.

Others will write and comment on the leak itself. I will only say that if it turns out that the leak came from another justice, unlikely but still possible, the Supreme Court might never be the same.

Finally, we are here today solely because Mitch McConnell blocked President Obama from appointing anyone in 2016, which led to the confirmation of Niel Gorsuch, and then he rushed through the nomination of Amy Coney Barrett at the end of Trump's term.

Without those two, Roe and Casey would not be in danger.

That chain of events is excellent fodder for political scientists and legal realists. But what I want to say is that, assuming the draft opinion becomes law, the Constitution had nothing to do with it.