Article VI, Section 3 of the Constitution says that “no religious Test shall ever be required as a Qualification to any office or public Trust under the United States.” (The point is to prevent an establishment of religion by allowing people of all faiths to take part in forming the government.) But what will it be like for him if he is confirmed? How will he resolve the tensions that might arise from his decision to serve two masters?
There are two simple views commonly offered about how people cope in this situation, but neither has much to recommend it. The problem is as complicated as the rest of life. One view, which I might call the “separation” theory, holds that religious beliefs are a private matter that a public official should endeavor to keep separate from his public obligations. This mimics on a personal scale the separation of church and state.
It is the position that Justice William Brennan, a Catholic, took during his confirmation hearings in 1957: “[W]hat shall control me is the oath that I took to support the Constitution and laws of the United States and [I shall] so act upon the cases that come before me for decision that it is that oath and that alone which governs.” But it is not clear that Justice Brennan actually did this. He consistently refused to enforce the death penalty, even though the Constitution clearly contemplates it. (It talks about “capital” crimes, and the process for depriving a defendant “of life” in criminal cases.)
And it is hard to imagine how a person could centrifuge his beliefs and separate the religious from the secular. It’s not like asking a jury to ignore hearsay evidence that slips in at a trial. A religious conviction is not a bit of evidence; it is a way of looking at the world. We can no more set it aside than we can bracket our ideas of color and shape in looking at a picture.
The second view, which I might call the “zombie” theory, is one which some on the secular left attribute to those on the religious right. It holds that we are wise to worry about pious public officials, because by their own admission they will always put God’s law first. This offers a different picture of our interior life—the devout believer tuned like Joan of Arc to some heavenly voice and unquestioningly following its directions. Whiffs of this surround Ashcroft’s case, perhaps because he is the first Pentecostal to be nominated for Attorney General.
Abortion-rights advocates complain that his religious convictions will prevent him from enforcing the Freedom of Access to Clinic Entrances Act (FACE), a federal law that forbids criminal intimidation and violence at abortion clinics.But religious beliefs are not absolute, irrational commitments, incapable of playing a role in the ordinary processes of moral reasoning. The religious principle that protects the unborn is a rule against violence. So too is FACE. One need not overlook the essential similarities just because pro-choice groups lobbied for the federal law.
There is no simple formula for how nominees can reconcile their religious and political obligations. This does not mean we should prefer people who don’t believe in God. The Religious Test Clause forbids that. And it demeans the moral judgment of nonbelievers to suppose that they are untroubled by concerns of conscience. Any candidate with a character worthy of the office of Attorney General is going to have problems with some laws on the books. (We are a nation that enacted the Fugitive Slave Act of 1850.) I think it’s a point in a nominee’s favor that he sees the world as a complicated place.
