When Only Priests May Be Judges

The Bush Administration and the Religious Right ultimately want all Americans to face trial, not by standing in front of a secular judge, but by being hauled before a religious priest. Thus, having the correct view of the Bible becomes the single most important fact to know in determining if a nominee is qualified to be judge.

Only Priests May Judge

When I was young, one of the jobs that I had on my short list of preferred professions was "Judge", with an interest of sitting on the Supreme Court. It was not a deep, overriding passion -- I had some suspicion that I would not be good enough to qualify. However, my interest prompted me to study legal issues. This included a year-long course in the History of the Supreme Court, and concentrated study in the Philosophy of Law as a graduate student, where I taught Philosophy of Law.

However, I had a problem with that profession. A judge's job is to apply the law that exists, regardless of whether that law is just or unjust. If the law said that harboring escaped slaves was punishable by fine or imprisonment, I would have to be an agent through which violators were fined and imprisoned, regardless of my sympathies for the abolitionists. I was more interested in making just law and opposing just law, than in enforcing the law independent of whether it was just or unjust.

However, I wonder what would have happened if I had pursued that particular American dream. What if I had gone to law school and excelled, graduating near the top of my class? What if I became a practicing lawyer, where I acquired a reputation for keen intellect and solid knowledge of the subject matter? What if my reputation included a strong moral character where people felt safe assuming that I would bend no rules?

If I had done all of this, according to President Bush, I would still not qualify to be a judge in the United States, because I would fail his religious test. In noting why he picked Miers, Bush said that “part of her life is her religion.” Suggesting, of course, that a person for whom religion was not a part of her life would be considered less qualified, and probably unqualified.

Ultimately, Bush and his supporters among the religious right do not like the idea of Americans being judged in secular courts. They want Americans to stand trial in a church court before accepted members of the Conservative priesthood. Consequently, only priests are qualified to be judges.

Constitutional Provisions

Article 6, Section 3 of the Constitution states:

The senators and representatives before-mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

I want to speak to this statement, not as a principle of law, but as a principle of ethics in a free society.

There can be no law that prohibits an individual from basing his decision to vote for or against a candidate on religion.

There can be no law that prohibits an individual from basing his decision to vote for or against a candidate on race. However, the person who does this violates a moral principle, even if no law can be passed against it. This is a person rightfully classified as a bigot. Parents interested in raising morally decent children rightfully point to such individuals and say, "Do not be like him, he is of poor moral character."

We can pass no law against these types of decisions. However, we can justifiably condemn and criticize anybody who advocates this type of behavior, treating them honestly like the bigots they are. We can make an example of any citizen whose bigotry inspires him to stand before a microphone and use race as a criterion for voting. People may still do this, but they will do it without the sanction or approval of society at large.

We could write into the Constitution that there shall be no racial test shall be required for any office of trust in the United States. However, we do not have to. It is written into our moral code, and that is enough.

The same argument applies to religion. The individual who stands before an audience and demands that candidates pass a religious test demonstrates the same morally contemptible bigotry as the man who advocates voting on the basis of race. A fair and just society would greet those who suggest such a thing with the same contempt. A society that does not greet those who suggest such a thing with the same contempt is not fair and just.

Implications

What does it mean to say that only those belonging to a particular religion are qualified to judge the law?

If you say that a person is not qualified to judge the law, then you must also be saying that he is not qualified to obey it. In a sense, we are all judges. We live our lives safe from legal entanglements only to the degree that we are capable of knowing what the law requires and on which side of the law our actions would fall. If people belonging to the wrong religion are not qualified to see the line, they are not capable of keeping their actions on the good side of the line.

When an individual encounters a complex law, he contacts a lawyer. To a certain extent, a lawyer's job is to predict what a judge would or would not say about a case, and advise the client accordingly. An individual who is not competent to judge the law is not competent to advise clients how to stay on the right side of that law.

If only priests and practitioners of the right religion are qualified to be judges, then only priests and practitioners of the right religion are qualified to be lawyers as well, or to be full citizens.

These are the implications of the religious bigotry that rest behind the decision to use a religious test to decide who to appoint, or who to vote for, for public office.

A Pattern of Bigotry

While the Constitution of the United States says that no religious test will be required for all executive and judicial officers, both of the United States and of the several states, will need to pass a religious test, 8 State Constitutions still require a religious test.

The Supreme Court has blocked enforcement of these provisions. However, they have not been removed.

Imagine the uproar that would exist if the Constitution of any state still required a racial test to hold a political position in any state. The people would instantly recognize that having that wording in the state Constitution, even if it is not enforced, was tantamount to an endorsement of racism -- an expressed wish to return to the days when racial bigotry and discrimination was the norm and blacks knew their place.

In some circles, this is not a wish, but a policy. Fortunately, a fair and just society rejects this view and recognizes that morality and justice require the condemnation of those who do not reject it. Such a bigot may still have a right to speak, but not a right to our respect. Society shows that it accepts that this view is wrong by removing these archaic provisions from their constitutions and laws. A society that keeps these provisions still has not found the moral courage to leave its bigotry behind.

Keeping these religious provisions inside the State constitutions admits to the same type of bigotry. It is an expressed wish to return to the good old days when religious bigotry and discrimination was the norm and non-theists knew their place. Among some circles, this is not a wish, but a policy. Unfortunately, the principles of fairness and justice that says to condemn this policy has been ignored.

A fair and just society would remove these bigoted provisions from their constitutions, and thereby remove the approval of the religious bigotry contained in these provisions implicit in the decision to keep these rules in place.

In addition, a fair and just society would react to a President who says, “You can trust she will make a good Judge. She is one of us – because of her religion” will face the same reaction as the President who says, “You can trust she will make a good Judge. She is one of us – because of her race.”