Evaluating candidates based on their religious views

[Brownstein, Alan]

I don't have a satisfactory analysis of this issue either, but there are lots of interesting hypos that push the edge of the envelope. Two examples:

Would the primary of a political party limited to candidates of a particular faith be constitutional?

By analogy to the firefighter's Title VII case from last term. The names of the top ten candidates for promotion to Captain or other leadership positions in the fire department (the candidates who scored highest on the exams and tests used for promotions) are submitted to the voters for approval. All candidates of a particular religion (or race) are regularly rejected by the electorate, even if they have the highest scores. Are these promotion decisions constitutional?

Alan Brownstein



From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, September 22, 2009 10:23 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Evaluating candidates based on their religious views

            I haven't come to a truly satisfactory analysis of this, but my tentative judgment is that the right to elect or defeat a candidate based on any reason the voters please to use - including race, religion, sexual orientation, or anything else - is an irreducible minimum of democratic sovereign power.  A law enacted for improper reasons might be struck down because its enforcement would violate the Constitution; but the voters' selection of a candidate, it seems to me, has to be understood as final.  An inquiry into the voters' views wouldn't be so much "ugly" as a usurpation of the sovereign's power to choose who is to speak for the sovereign.

            Does that still leave some underenforced constitutional norm here, that the voters are obligated to follow even if no court can enforce it?  I don't think so; it seems to me that voters in this respect are entirely unconstrained.  There's no constitutional text that seems to me to constrain them, nor is there any history supporting an interpretation of ambiguous text.  In particular, voting against someone for bad reasons does not, in my view, deny the losing candidate any constitutionally protected liberty or property without due process, nor deny him equal protection of the law, chiefly for the reasons I mentioned above.  The Religious Test Clause, it seems to me, isn't properly understood to apply to voters' religious judgments.  And it would take some very explicit text, it seems to me, to deny the voters the right - whether or not the denial is enforceable - to exercise their sovereign power in choosing their representatives.

            Again, I realize that some of the distinctions here are far from robust, and others may have a different view of the irreducible minimum of democracy than I do.  But this is my tentative view, and I suspect it is also what animates both popular and judicial opinions on the matter.

            Eugene

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Christopher Lund
Sent: Tuesday, September 22, 2009 10:14 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Evaluating candidates based on their religious views

I have a basic question that goes to Professor Volokh's assumption below (i.e., "I assume that there's no constitutional prohibition (judicially enforceable or not) on voters considering anything they please about this candidate.").   There may be a settled answer to this that he or others can fill me in on.  If so, sorry to waste peoples' time.

Let's imagine two situations:

(1) A majority of voters in state A together agree that they do not want candidate B as governor because of his atheistic beliefs.  They vote as a block against him, and B loses the election as a result.

(2) A majority of voters in state A together agree that they do not want candidate B as governor because of his atheistic beliefs.  They vote as a block to pass a referendum amending the state's Constitution to bar atheists from the governor's office.  B wins the election, but is excluded from the office because of the referendum.

Professor Volokh, I assume you would think that (1) is constitutional, while (2) is not?   That despite their similarities, there is state action in the second, but not the first.   Is it because the referendum is on the official books?  Is it because the referendum applies to more than candidate B?  Is it because the referendum impairs the rights of voters as well as candidates?

Alternatively, what about the claim that both (1) and (2) are unconstitutional, but that  the prohibition in (1) is not judicially enforceable, due to the truly difficult and ugly inquiries it would require into issues of intent and causation.   A difference would be that, under this second theory, voters would have a constitutional obligation (though again not judicially enforced) to vote for candidates for religion-neutral reasons.

Thoughts?  Again, if there is literature on this that people can point me to, I'd be very interested!

Best,
Chris

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, September 18, 2009 12:35 PM
To: 'Law & Religion issues for Law Academics'
Subject: Evaluating candidates based on their religious views

               Here's a story that gives a concrete example related to our earlier discussion.  This one involves a candidate for election, and I assume that there's no constitutional prohibition (judicially enforceable or not) on voters considering anything they please about this candidate.

But say that Mr. Foster was being considered for appointment to a position of roughly the prominence, authority, or duty of a mayor.  (Say, for instance, that state law provided for the city council to appoint a mayor pending a new election when the elected mayor dies in office.)  Would there be a constitutional problem - again, whether or not a judge could do anything about it - with the appointing or confirming officials' considering Mr. Foster's views in making the decision?  Could the officials properly only consider his views to the extent that he has specific scientific responsibilities, or could they also consider those views as (1) evidence of his general reasonableness, or (2) relevant to likely public perceptions of the city?

               Eugene


http://www.tampabay.com/news/politics/can-bill-fosters-creation-beliefs-evolve-into-valid-issue-in-st-petersburg/1036480

In an interview at his law office, [St. Petersburg mayoral candidate Bill Foster] talked about some of his beliefs and refused to talk about others.

"Dinosaurs are mentioned in Job<http://www.bible.ca/tracks/b-dinosaurs-mentioned-in-bible.htm>, so I don't have any problem believing that dinosaurs roamed the earth,'' he said, referring to the book of Job, which mentions the "behemoth." He said he believes dinosaurs and humans lived at the same time, though most scientists say there is a gap of at least 60 million years between dinosaurs and mankind<http://paleobiology.si.edu/dinosaurs/info/everything/why.html>.

"If you look at all the data that are out there ... they all support the theory of evolution,'' said Peter Harries, an associate professor of paleontology<http://www.ucmp.berkeley.edu/faq.php> at the University of South Florida. "The only way the theory of evolution<http://evolution.berkeley.edu/> is not likely to be true is if you don't believe in the scientific method."

Rather than Darwin's theory of evolution, Foster accepts the Bible's Genesis account in which God created the world and all living things in six days<http://www.lighthouseoftruth.net/god_created_the_earth_and_all_living_things.html>.

Foster, a member of Starkey Road Baptist Church in Seminole, dismissed the suggestion that each of those "days" could represent a period of thousands of years.

"In the Genesis account, it's timed by the sun and the moon,'' he responded.

Normally, candidates in the Tampa Bay area are not asked about dinosaurs or whether they believe the world is billions of years old or thousands, as some creationists maintain. (Ford said billions, Foster declined to answer.)
[From earlier in the same piece.]

Is that relevant to the campaign for mayor of Florida's fourth-largest city?

"This city is trying to increase its employment base with respect to scientific organizations and trying to recruit scientific concerns to come here,'' said St. Petersburg architect Michael Dailey, who supports Kathleen Ford, Foster's opponent. "If our mayor has a belief system that basically rejects science, how can people take him seriously?"
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