As our political institutions creak under the weight of the Trump presidency, the American public has reexamined some of the hidden joists in our constitutional architecture. Examples abound. The word “emolument” has reentered the public lexicon, as Americans argue about whether or not President Trump has violated prohibitions against profiting from public office. There’s been talk of invoking the Twenty-fifth Amendment, removing Trump from the presidency under the premise that he is “unable to discharge the powers and duties of his office.” The constitutionality of Trump’s travel ban continues to be tested in the courts. And lurking behind it all, of course, is the ongoing investigation into his campaign’s dealings with Russia—we might soon be debating whether Trump can pardon himself.
But it’s not just Trump who’s sparking constitutional controversies. Last summer, Senator Bernie Sanders of Vermont was accused of violating the Constitution’s clumsily titled “no religious-test clause.” The infrequently invoked rule—Article VI clause 3, to be precise—stipulates that “no religious test shall ever be required as a qualification to any office or public trust in the United States.” In a heated exchange with Russell Vought, Trump’s pick to fill the position of deputy director of the Office of Management and Budget, Sanders appeared to violate the Article VI rule by implying that Vought’s religious beliefs—he’s an Evangelical Christian—disqualified him from public office.
Sanders was troubled by the language in a 2016 blog post in which Vought wrote that Muslims “have a deficient theology” and “stand condemned.” Uninterested in the theological argument Vought was making about the exclusivity of Christianity, Sanders claimed that Vought’s beliefs called into question his ability to serve the entire American public—and especially Muslim-Americans—with equal tolerance and respect.
Sanders’s comments sparked a fair amount of public backlash. Numerous commentators across the political spectrum labeled his criticism of Vought an unconstitutional religious test. And on the Friday before Congress’s Fourth of July recess, sixty-four Republican lawmakers jumped into the debate. In a letter to Attorney General Jeff Sessions, they asked him to “make clear” that “no religious test will ever be required to serve in the government of the United States.”
For the Religious Right, this latest dustup will undoubtedly make for great campaign fodder. (The Family Research Council, founded by James Dobson, has already produced an ad warning its conservative Christian audience that, “In Bernie Sanders’s America, he condemns you as unfit for public service.”) But the public outrage is unlikely to lead to any formal rebuke or legal action. Though Sanders’s actions were widely criticized, there is no legal mechanism to challenge his motives. Unless we want to open every legislative decision to legal scrutiny, representatives can vote against a nominee for any reason he or she sees fit, religious or otherwise.
Still, the public reaction to Vought’s nomination hearing reveals the power of the Article VI rule in principle. Central to the American origin story, Article VI stands as proof and assurance that America is a nation founded on the doctrine of religious freedom. Though legally limited, perhaps, the clause’s symbolic and political meaning still resonates.
It’s important to note that, despite the deference owed to Article VI, Sanders has his public backers as well. Russell Vought’s religious beliefs can tell us an awful lot about what kind of public servant he’ll be, they insist. As we evaluate candidates’ moral fitness for public office, they argue, taking into account their religious values is not just legal; it’s necessary.
This debate over the constitutionality of Senator Sanders’s “religious test” is, historically speaking, nothing new. For generations, Americans have disputed to what extent religion should be relevant in the voting booth. And rightfully so. How we determine who can serve as our political representatives is no trivial matter; rather, it’s an exercise that gets to the heart of how we envision ourselves as a country and a people.
Determining how religion fits into that vision has been especially vexing. In fact, the recent flare-up over religious tests can be seen as a proxy for a much broader and more bedeviling dispute over the role religion should play in American public life. American history (not to mention our contemporary politics) is littered with examples of this debate. But to gauge how the contours of this controversy have shifted, Article VI is a valuable touchstone. Though it’s not every day that Americans spar over the meaning and reach of the Constitution’s religious-test ban, the quarrel is a persistent one, and as old as the document itself.
WHEN the founders met in Philadelphia in 1787 to draft the U.S. Constitution, a religious-test ban was not at the top of the agenda. Drafted and proposed by Charles Pinckney, a delegate from South Carolina, the clause was adopted by the Constitutional Convention with a clear majority and little debate. Some even insisted that the ban was unnecessary on account of the states’ “prevailing liberality.” But when the drafters of the Constitution returned to their home states to defend their work, they faced complaints that the document was too secular. It made no mention of God, and when coupled with the “no religious test clause,” many complained that the Constitution reflected political atheism. The Article VI ban, they argued, belittled the role that religion played in fostering a free and virtuous democratic society.