SALT LAKE CITY — America's Founders were clear on religion, at least when it came to job qualifications. The Constitution bans religious tests for federal officers, making personal faith (or a lack of it) a non-issue, at least in terms of the law.
However, for those tasked with vetting political appointees, personal faith is certainly an issue. Senators want to know if a potential new federal judge will uphold prior abortion rulings in spite of her Catholic faith or if a conservative Christian leader is prepared to protect Muslims.
Those who lead confirmation hearings must walk a tricky line between asking about potential faith-related conflicts and unlawful religious bigotry, and a few recent events have shown that they often aren't very good at it.
A confirmation hearing for Amy Barrett, a Notre Dame law professor nominated to the 7th Circuit Court of Appeals, entered uncomfortable territory recently when some Senate Judiciary Committee members appeared to care more about Barrett's Catholic faith than her legal expertise.
"The dogma lives loudly within you," said Sen. Dianne Feinstein, D-Calif. "That's of concern when you come to big issues that large numbers of people have fought for for years in this country."
Controversial statements and questions also emerged during an exchange in June between Sen. Bernie Sanders, I-Vermont, and Russell Vought, nominated to be deputy director of the Office of Management and Budget. Sanders was criticized for his attempts to paint Vought's evangelical Christian faith as problematic, but the senator, like Feinstein, argued that it's fair to address personal beliefs when they might interfere with job performance.
In the face of such encounters, some commentators have called for an end to any religious questioning. But removing mentions of faith from confirmation hearings ignores the important role religion plays in governing, experts said.
Those concerned with the vetting process are on the hunt for a middle ground, but balancing constitutional protections with faith-related concerns isn't getting any easier.
"As conservative, often religiously motivated positions on issues like gay marriage and banning abortion increasingly become out of step with popular opinion and legal precedent, this boundary between personal conviction and legal fidelity is going to become even trickier to navigate," The Atlantic reported.
Religion and politics
Personal faith has long been viewed as an asset for political candidates, providing moral guidelines that ground a leader's actions.
Even with religious disaffiliation on the rise, candidates are expected to provide a religious history and sprinkle references to God into their statements. When they fail to do so, their public image can suffer, such as when Nashville Mayor Megan Berry was accused of being an atheist in the final days of her 2015 campaign.
"It's no small accusation in a state like Tennessee that still has a law banning atheists from public office," NPR reported at the time.
Overall, 4 in 10 U.S. adults say they wouldn't vote for an atheist presidential candidate put forward by their party, even if he or she were otherwise well-qualified, Gallup reported in 2015.
However, in some political contexts, including courtrooms and federal agencies, religious commitments are increasingly seen as threatening. Some worry that a religiously conservative judge would hesitate to uphold current abortion laws or that an evangelical Christian heading a federal agency would ignore the needs of American Muslims.
"As the demands for tolerance in America become greater, the bounds of acceptance can also become tighter. Ironically, that pits acceptance of religious diversity against the freedom of individual conscience," The Atlantic reported in its June story about Sanders' grilling of Vought.
Senators criticized for asking faith-related questions during appointment hearings have argued that they're working to determine if a proposed leader is prepared to serve all Americans.
Sen. Feinstein and Sen. Dick Durbin, D-Illinois, both told the National Review that Barrett's faith background was fair game since she'd spoken often on navigating the intersection between personal beliefs and law.
"Going into a person's religion is not the right thing to do in every circumstance," Durbin said in a statement. "But she's been outspoken."
Their questions — and others like them — are also undoubtedly driven by interparty tensions, just as religious statements (or the absence of them) on the campaign trail can be used as weapons by opponents, experts said.
"My sense is that (senators) don't know what they're walking into when these advocacy groups hand them lines to repeat," tweeted Michael Wear, who worked on faith-based outreach for the Obama administration.
In response to the increasingly politicized nature of personal beliefs, some political appointees choose to sidestep faith-related questions.
"If you're asking whether I'm a faithful Catholic, I am, although I would stress that my own personal church affiliations or my religious belief would not bear on the discharge of my duties as a judge," Barrett said at one point during her confirmation hearing, while declining, at other points, to expand on how her faith has influenced her views on certain cases, according to America magazine.
While this approach is understandable because of how religion-related answers are sometimes misconstrued, it's unfortunate, said Cathleen Kaveny, a professor of law and theology at Boston College, to America magazine. Personal faith certainly affects how a judge rules or a leader leads, so policymakers should be looking for appropriate ways to bring religion into the vetting process.
"You can't say that our faith on the one hand has ramifications for politics, law and the common good and on the other hand expect not to answer questions about it and claim that faith is purely private," she said.
Moving forward, those who lead confirmation hearings must be more careful about how they address the relationship between faith and politics, tweeted Melissa Rogers, a nonresident senior scholar with the Brookings Institution.
"When (a) judicial nominee has written about (the) intersection of personal faith and judging, (it's) fine for senators to ask about that topic but (it's) not fine for senators to tell (a) nominee things like religious 'dogma lives loudly in you,'" she said.
People of faith have served America well in a variety of political functions for centuries, and concerns about current hot-button issues derail that trend, John Garvey, president of the Catholic University of America and one of Barrett's former professors, told the Atlantic.
"We don't want to disqualify good people just because they have come by good principles through their faith. That would make for a much worse system of government," he said.
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