Quaker presidents?

[Volokh, Eugene]

        Sandy raises an excellent but difficult question, one that is
connected to the central question of why we prohibit religious
discrimination.  After all -- and whether or not we "welcome religious
speech into the public square" -- it might seem quite rational to say "Hmm,
this fellow believes in X, and this tells me something about his likely
future behavior."  "This fellow believes in the virgin birth or the parting
of the Red Sea; I think these are silly and irrational things to believe in,
so he hasn't properly understood the rules of rational scientific inquiry,
and therefore will make a bad physicist."  "This woman has consciously
chosen to reject Jesus's gospel of love, and instead sticks with the Old
Testament, which is built on hard, unyielding justice, so she probably
doesn't have the kindness and charity required of someone in this job."
"This man is an atheist, and doesn't believe in a future state of rewards
and punishments, so we shouldn't let him testify in court, since he's less
likely to obey his oath."  On the surface, all of these seem to be credible,
rational inferences.  (Of course, no-one would think that they are100%
reliable, but many of the proxies we routinely and permissibly use for
future conduct are far from 100% reliable.)

        Why do we reject these inferences?  Not, I think, because of logic,
but because of experience; they may look good on paper to some, but they
ultimately don't work, for various reasons:  (1)  Denominational
affiliation, in many (though not all) cases, tells us much less about
people's views than one might think, partly because people -- especially
those in large denominations -- often keep their affiliation for cultural
reasons more than theological, and partly because most scriptures and even
most denominational traditions are interpreted in different ways by
different adherents.  (2)  Outsiders often have distorted views of other
denominations' beliefs, and thus are likely to err in evaluating them.  (3)
Religious discrimination, especially by the government, has historically
proven to create a tremendous amount of social tension, often including
deadly violence.  Therefore, the benefits of drawing inferences based on
others' religious views are much less than might at first appear (because of
the likelihood of error in drawing such inferences), and are therefore less
than the costs.  Or this, at any rate, is the theory of the various bans on
religious discrimination.

        So the issue here is whether these reasons apply equally to the
questioning that Sandy describes (at least in the absence of some conclusive
argument that the Constitution clearly bans such questioning without regard
to whether such questioning is wise or not).  Does the fact that people use
religion only as a first step in deciding to ask further questions, and are
willing to credit a person's responses to those questions ("Yes, I'll be a
good President / Secretary of Defense / general / soldier, even though I'm
nominally a Quaker") diminish our concerns?  Does the fact that the
questioning relates to high government officials diminish them?

        I'm not sure what the right answer is here, but I do think that the
seeming reasonableness of using stated beliefs as a proxy for likely conduct
must be viewed in light of the general no-religious-discrimination
principle, which rests on the notion that stated religious beliefs are in
fact quite a poor proxy, and a costly one.

        Eugene

Sandy Levinson writes:

> In reading John Rawls' The Law of Peoples, I came across the following (p.
> 105):
>
> "The statesman . . . is a central figure in considering the conduct of
> war, and must be prepared to wage a just war in defense of liberal
> democratic regimes....  Quakers, who oppose all wars, can join an
> overlapping consensus on a constitutional regime, but they cannot always
> endorse a democracy's particular decisions--here, to engage in a war of
> self-defnse--even when those decisions are reasonable in the light of its
> political values.  This indicates that they could not in good faith, in
> the absence of special circumstances, seek the highest offices in a
> liberal democratic regime.  The statesman must look to the political
> world, and must, in extreme cases, be able to distinguish between the
> interests of the well-ordered regime he or she serves and the dictates of
> the religious, philosophical, or moral doctrine that he or she personally
> lives by."
>
> I assume, at the very least, that this means that any candidate identified
> with Quakerism (say, Richard Nixon) could legitimate be interrogated, at
> news conferences and the like, about the meaning of his/her Quakerism and
> that it would completely legitimate, should that compel pacificism, to
> reject his/her candidacy.  I suppose one could argue that one is rejecting
> the candidacy not because the candidate is a Quaker, but, rather, because
> he/she is a pacifist.  Yet, of course, one might never have thought to ask
> the question had it not been for the knowledge that the candidate
> professed to be a Quaker.  Similarly with regard to a Catholic and
> abortion or, in an every more interesting development, the death penalty.
>
> I presume there's nothing improper about using religious identification as
> a proxy for the likelihood of holding certain substantive views.  Is there
> anything objectionable in, say, a member of the Senate Judiciary Committee
> beginning a question by saying, "I see that you are a member of ____
> denomination; tell me, would you find doing X consistent with your
> adherence to the denomination's tenets?"  (I take it that John Ashcroft
> was asked a number of such questions.  Is there anything problematic about
> this?)  Would it be proper to ask a Catholic politician who opposes
> abortion because "God commands that we do not kill the innocent" how he
> square support for capital punishment in light of the Vatican's recent
> unequivocal condemnation of the practice.   (Or one can reverse the hypo,
> as with Mario Cuomo.)
>
> I suppose the central question is this:  If we indeed welcome relgious
> speech into the public square, then isn't it entailed that we should feel
> feel to question people, in public, about the consequences of their
> religious commitments without running afoul of the "No Test Oath" clause
> or of the First Amendment?
>
> sandy
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