Catholics Need Not Apply

By Ken Concannon
Herald Columnist
(From the issue of 10/23/03)

Last month, Miguel Estrada, who had been nominated by the Bush administration over two years ago to fill a vacancy on the Circuit Court of Appeals in Washington DC, threw in the towel. He had had enough. His nomination had been blocked first by liberal democratic senators who controlled the Senate Judiciary Committee — and the confirmation process — throughout 2001 and 2002, and then finally by the same liberal coalition whose filibuster of his nomination throughout 2003 prevented the full Senate from voting on his nomination. Fed up, the conservative nominee withdrew his own nomination.

Following the withdrawal, two of the leaders of the coalition that frustrated the administration and Estrada — Senator Ted Kennedy of Massachusetts (who calls himself a Catholic) and Charles Schumer of New York (who doesn’t) — held a press conference to gloat over their victory and to send a message to the Bush administration. According to Schumer liberal Democrats will continue to block judges who are "far beyond the mainstream and refuse to answer questions." Estrada was suspected of being pro-life. The supposedly Catholic Kennedy described Estrada’s withdrawal as "a victory for the Constitution."

"A victory for the Constitution?" Not really. If anything, the tactics that have been employed by Kennedy, Schumer and their liberal allies in the Senate to prevent the appointment of nominees to the federal bench whose political and moral views identify them as conservative and thereby "far beyond the mainstream" may actually be in violation of Article VI of the United States Constitution.

Paragraph 3 of that Article states, among other things, that "no religious test shall ever be required as a qualification to any office or public trust under the United States." The framers of the Constitution had been, until their rebellion a few years earlier, English subjects — and as such, they were very familiar with the practical application of religious tests. At that time, in most parts of the English-speaking world, only Protestants could hold public office, and in Ireland, very possibly the most unfortunate part of the British realm, religious tests were incorporated into the infamous Penal Laws designed to reduce the influence of "popery" in that unhappy place.

The religious tests were designed to determine what a person believed, not necessarily what they called themselves. For example, one such test focused on the Catholic belief in transubstantiation. A Penal Law enacted in 1691 and still in effect when the colonies rebelled from the British stated that: "Every person that shall become a barrister at law, attorney, clerk or other officer of the court in Ireland shall take the oaths of allegiance and abhorrence, and make the declaration against transubstantiation in open court."

The declaration to be made by that particular religious test was: "I do solemnly and sincerely, in the presence of God, profess, testify and declare, that I do believe that in the sacrament of the Lord’s Supper there is not any transubstantiation of the elements of bread and wine into the body and blood of Christ at or after the consecration thereof by any person whatsoever, and that the invocation or adoration of the virgin Mary or any other saint, and the sacrifice of the Mass, as they are now used in the Church of Rome, are superstitious and idolatrous."

The intent of that and other religious tests of the time was to keep "papists," as Catholics were then called, out of the British government. Our founding fathers, some of whom were agnostics and the great majority of whom represented a variety of Protestant denominations, wrote a ban on religious tests into the Constitution because many of their ancestors had fled the British Isles to escape religious persecution.

The intent of Senators Kennedy, Schumer and their allies in the Senate is to keep anyone who does not fit their view of "mainstream" thinking out of the government, especially the judiciary. The questions they asked Estrada and other suspected conservatives during their nomination hearings were both unprecedented and designed to determine the nominee’s moral views rather than his or her judicial qualifications.

The primary religious test in Kennedy and Schumer’s "mainstream" religion relates to the issue of abortion. A pro-life response to their questions disqualifies a Catholic nominee from the federal judiciary today — just as a pro-transubstantiation response disqualified a "papist" from service in the Irish judiciary 300 years ago.

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