By JAY SEKULOW
WASHINGTON -- Within days after being nominated for a seat on the Supreme Court of the United States, some began to focus on the fact that John Roberts is a Catholic. The questions began. Should his nomination receive increased scrutiny because of his Catholic faith? Will he be impartial?
To make John Roberts' faith an issue at the coming Senate confirmation hearings would not only be wrong, but a big mistake.
To interject his Catholic faith to determine whether he is fit to serve on the Supreme Court would run afoul of the Constitution and Supreme Court precedent. Such tactics amount to a thinly masked variation of the formal "religious tests" for public office that have long been rejected as unconstitutional.
The Constitution specifically forbids the use of religious tests as a prerequisite for holding office with Article VI concluding that "no religious test shall ever be required as a qualification to any office or public trust under the United States."
Nearly 45 years ago, the Supreme Court held that a person cannot be disqualified from government service due to his religious beliefs or lack of beliefs.
In the 1961 case, Torcaso v. Watkins, in a unanimous decision, the high court brought an end to Maryland's requirement that a state appointee could not serve because he refused to declare a belief in God. The high court noted that "it was largely to escape religious test oaths and declarations that a great many of the early colonists left Europe and came here hoping to worship in their own way."
The Constitution, at the same time, protects people of faith -- ensuring that they are not discriminated against because they believe in God.
In 1978, in the case of McDaniel v. Paty, a Baptist minister was disqualified from participating in a constitutional convention by a provision of the Tennessee constitution, which prohibited ministers from being representatives.
In finding the provision violated the First Amendment, the high court in an opinion written by Justice William Brennan, a Catholic, concluded that "the Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities."
Just this year, the Supreme Court talked about the constitutional protections in place when it declared a long-standing monument of the Ten Commandments on the grounds of the Texas state capitol to be constitutional. In Van Orden v. Perry, the high court concluded: "(The Religion Clauses) seek to 'assure the fullest possible scope of religious liberty and tolerance for all.' They seek to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike."
Those who would question Roberts about his religious faith are really trying to get at something that no Supreme Court nominee should reveal -- their personal views on issues that will come before the Supreme Court.
No nominee should be forced to discuss their personal beliefs in advance of those issues coming before them on the high court. The religious faith of John Roberts should not become some sort of litmus test to be dissected and analyzed under the glare of television lights at a Senate confirmation hearing.
Roberts deserves a timely, up-or-down vote from the Senate based on his legal abilities and his judicial philosophy. The suggestion that his Catholic faith somehow diminishes his ability to serve as an impartial judge is offensive and sounds like the 18th-century religious tests for public office that have no place in American life.
X Jay Sekulow is chief counsel of the American Center for Law and Justice (www.aclj.org), a conservative Christian legal advocacy group founded by television evangelist Pat Robertson. Distributed by Knight Ridder/Tribune Information Services.