I have been asked on several occasions both by members of the media and private individuals about whether I was concerned that with Justice Stevens’ retirement there will be no Protestants on the Supreme Court unless President Obama nominates one to replace Stevens. With Justice Stevens’ resignation there are now six Roman Catholics and two Jews on the Supreme Court. My answer to the question is: First, no, it does not bother me, and it shouldn’t bother any American. Second, the question itself is un-American. Let me hasten to add I am not in any way, shape or form, challenging the patriotism of anyone who asks such a question. It is simply that the question itself is alien to our system of government. Article VI of the Constitution of the United States says, “No religious Test shall ever be required as a Qualification to any office or public Trust under the United States.”
This constitutional prohibition of any religious test for office was put there by our founding fathers because of bitter experience of religious discrimination both in England and in some of the American state governments. The question of a person’s religious faith, or lack thereof, should be irrelevant to their qualification to serve on the Supreme Court or in any other political office–federal, state or local. This is particularly true when you are dealing with a judge. In our system of government, judges are to interpret the law as it is, not as they might like for it to be. As current Chief Justice Roberts said in his confirmation hearings, “Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them.” Consequently, justices and judges must consciously seek to set aside their personal religious and moral convictions when playing their role as judicial umpires.
Whereas candidates for political office, such as governor, senator or president, are free to share their moral and religious convictions concerning what laws should be enacted if they were to be elected, justices and judges do not have that privilege.
As a Baptist, I strongly support the constitutional ban on any religious test for office. The question of a person’s religious affiliation, or lack thereof, should be that person’s private business, unless they volunteer the information, or they use their religious belief as a resource in making their case for elected office. Such religious affiliation, or lack thereof, is utterly irrelevant when considering the qualifications for a Supreme Court justice or federal judge.