What About the No Test Oath Clause

Mark Graber mgraber at gvpt.umd.edu
Wed Nov 22 13:24:31 PST 2006


As a way of clarifying some points, I have no problem about asking a
nominee whether their religious beliefs will influence their secular
decisions.  So if someone writes a letter to the editor of the New York
Times declaring that Congress ought to ban (or allow) gay marriage
because that is God's will, that strikes me as a reason for not allowing
that person to be in the Congress.  But asking a person whether, say
Judaism, properly interpreted, forbids (or requires) gay marriage, I
believe, would violate the Test oath clause (whether that violation is
judicially enforceable is another story).

MAG

>>> "Sanford Levinson" <SLevinson at law.utexas.edu> 11/22/06 4:13 PM >>>
Does the No Test Oath Clause do any work with regard to interrogating a
nominee (under oath, presumably, as before the Senate Judiciary
Committee) about the interesection of his/her religious views and the
demands of public office?  Assume, arguendo, that a nominee has written
a letter to the editor denouncing gay marriage, based on a reading of
the Bible. I assume that the author of a similar letter, pro or con gay
marriage, based on John Rawls or Burkean conservatism, could be
interrogated, including direct questions about the application of Rawls
or Burke to issues likely to arise.  Could someone who says, "I always
ask myself "What Would Jesus Do?" successfully object to being asked how
one knows what Jesus would do or why Jesus should take priority over,
say, James Madison, on the grounds of the No Test Oath Clause?

sandy 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, November 22, 2006 2:19 PM
To: conlawprof at lists.ucla.edu
Subject: RE: The First Amendment and rejection
ofapotentialcountyDirector ofSchools

	Well, that raises interesting Free Speech Clause and
Establishment Clause problems of its own, since it suggests that speech
given at a religious group meeting gets more protection than speech
given at a secular group meeting.  

	But in any event, the Sixth Circuit didn't rely on Mark's
argument, and treated this as primarily a Free Speech Clause issue; its
analysis would apparently have been the same regardless of whether the
speech was at a religious group or a secular group.  So let's
hypothesize an identical case except that Scarbrough gave the speech to
a secular group.  Would the panel be right to analyze it as simply a
Connick/Pickering issue, or should it have rejected the claim altogether
under some "high policymaking official" exception?

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Graber
> Sent: Wednesday, November 22, 2006 11:13 AM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: The First Amendment and rejection 
> ofapotentialcountyDirector of Schools
> 
> Yes!
> 
> >>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 11/22/06 2:08 PM >>>
> 	 Just to make sure I better understand Mark's argument: 
>  Mark, are you saying that the analysis would be materially different 
> if Scarbrough were rejected because he planned to give a speech to a 
> secular gay rights organization?
> 
> 	Eugene
> 
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu 
> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Graber
> > Sent: Wednesday, November 22, 2006 11:04 AM
> > To: conlawprof at lists.ucla.edu
> > Subject: RE: The First Amendment and rejection of 
> > apotentialcountyDirector of Schools
> > 
> > The argument is not when and whether a belief that homosexuality is 
> > right or wrong is relevant to certain government positions.  The 
> > question is on what basis may the inference be made.
> Howard and I are
> > simply rejecting the claim that a school board may constitutionally 
> > make inferences about a person's secular committments on
> the basis of
> > their religious affiliations.  The argument is completely
> different if
> > the plaintiff had written a letter to the editor asserting that 
> > secular people should condemn homosexuality.
> > But that is not the argument being made.
> > 
> > There may be a variation on Eugene's argument, namely that
> there are
> > certain appointments which are not subject to judicial
> analysis.  So,
> > for lots of good reasons, we may permit the president to
> rely on race,
> > religion, and gender when making certain appointments.  I have, 
> > however, grave reasons for thinking that these apply in
> this situation
> > (hard to imagine the Board being sustained if they declared
> they were
> > determined to hire a black, Jewish woman).
> > 
> > Mark A. Graber
> > 
> > >>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 11/22/06 1:49 PM >>>
> > 	The question isn't whether a liberal district may
> refuse to hire any
> > evangelical Christian on these grounds -- only whether it
> may refuse
> > to hire a *superintendent of
> > schools* on the grounds that he may believe homosexuality
> to be wrong
> > (whether the belief is religious or otherwise).
> > 
> > 	I take it that a Governor would have the right to
> reject a candidate
> > for a Secretary of Education position on the grounds that the 
> > Secretary's public speech has suggested endorsement of 
> > anti-homosexuality views -- or for that matter, reject any
> candidates
> > for any cabinet positions who (for instance) aren't pro-choice or 
> > anti-war or whatever else.  Likewise, a Mayor may dismiss a Human 
> > Rights Commission employee on these grounds.  (See Lumpkin
> v. Brown,
> > 109
> F.3d
> > 1498 (9th Cir. 1997), upholding such a dismissal, applying
> Pickering
> > but also citing Elrod and noting that policymaking employees may be 
> > removed solely on the basis of political
> > affiliation.)  Perhaps the reason is simply that anti-homosexuality 
> > speech is more likely to fail the Pickering balance than 
> > pro-homosexuality speech (though I'm not positive that this is so, 
> > especially if loss of public support is an important factor in the 
> > Pickering analysis).
> > But I wonder whether there's also an Elrod/Branti element here, so 
> > that the elected official may dismiss policymaking employees (or 
> > reject applicants for such poses) even without any need for a 
> > Pickering showing.
> > 
> > 	Eugene
> > 
> > > -----Original Message-----
> > > From: conlawprof-bounces at lists.ucla.edu 
> > > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark
> Graber
> > > Sent: Wednesday, November 22, 2006 10:28 AM
> > > To: conlawprof at lists.ucla.edu
> > > Subject: RE: The First Amendment and rejection of a 
> > > potentialcountyDirector of Schools
> > > 
> > > So the logic here is that a liberal district may refuse
> to hire any
> 
> > > evangelical Christian on the ground that belonging to an
> > evangelical
> > > sect provides evidence that the person probably disapproves of 
> > > homosexual relations.  Notice, at least as Eugene presented
> > the case,
> > > the only evidence of the plaintiff 's attitudes towards
> > homosexuals is
> > > that he participated in a religious service with many gay and 
> > > lesbians.
> > > 
> > > Mark A. Graber
> > > 
> > > 
> > > 
> > > >>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 11/22/06 1:12 PM >>>
> > > 	The chief claim that the panel discusses is a Free
> > Speech Clause
> > > claim; Scarbrough also raised a Free Exercise Clause
> claim, but the
> 
> > > panel treats it the same as a Free Speech Clause claim.
> > > 
> > > 	My sense is that there's no Lukumi-like discrimination based on
> 
> > > religion or religiosity here; there's good reason to think board 
> > > members disapproved of Scarbrough's implicit endorsement of 
> > > homosexuality as proper behavior, but little to think that they 
> > > disapproved of his speech because of its religious context.  So if
> 
> > > there's a Free Exercise Clause violation, it would
> > presumably be some
> > > sort of hybrid-rights violation, triggered partly by the
> > Free Speech
> > > Clause.
> > > 
> > > 	By the way, sorry for not posting a link to the decision; it's 
> > > http://www.ca6.uscourts.gov/opinions.pdf/06a0434p-06.pdf .
> > > 
> > > 	Eugene
> > > 
> > > _______________________________________________
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