Evaluating candidates based on their religious views
aebrownstein at ucdavis.edu
Tue Sep 22 16:05:21 PDT 2009
I don't doubt that there is a line here, but I'm having a lot of trouble drawing it. Is the critical fact that voters are rejecting individuals one at a time while discriminatory policies operate more generally (sort of a distinction between administrative and legislative action)? And are we only talking about voters rejecting individuals who work directly for the government? What about voter rejection of individual contracts with suppliers of goods because of the supplier's race or religion? What about government grants? Would it be constitutional to require that every grant a state provided to a non-profit organization must be subject to voter approval even though that results in the consistent rejection of grants to faith-based organizations representing minority religions? What about referenda reviewing land use decisions? Would there be a constitutional problem if the voters continually rejected zoning for the houses of worship of minority faiths while they approved similar zoning requests for the houses of worship of more popular faiths?
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Vance R. Koven
Sent: Tuesday, September 22, 2009 1:43 PM
To: Law & Religion issues for Law Academics
Subject: Re: Evaluating candidates based on their religious views
I suspect that the analysis here is based on something even more fundamental than constitutional law, which is republican government theory. Since in a republican polity the people *are* sovereign, constitutional analysis is limited to the institutions and processes the people select to effect their chosen governmental structure. Therefore, although a constitution can specify that organs of state can determine qualification to vote, and what sorts of things voters can do directly (e.g. referendums), the direct powers and the limitations on the powers of governmental bodies have to be driven by the sovereign public. One example of how this plays out is in amendments: assuming one follows the methodology prescribed by the constitution, a constitutional amendment can't itself be "unconstitutional." All of which is a long way of saying that Eugene is specifically right that if the people wanted the institutions of government to be able to limit the motivations on which voters can vote, the constitution would have to specify that pretty clearly as a limitation on popular sovereignty.
The difference between collusively voting for or against someone based on religion (or any other criterion) and collusively voting to enact a law that only people fulfilling a particular criterion are eligible for a position, is the difference between direct sovereign conduct and the manipulation of governmental institutions. Since the constitution describes how the latter can be done, failing to do it that way makes the action subject to constitutional attack. Contrast a collusive vote (if this were possible) to amend the constitution to require the same thing that the putative law would require, and that would be (at least legally) unassailable.
On Tue, Sep 22, 2009 at 3:28 PM, Volokh, Eugene <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>> wrote:
The last question reminds me of Justice Powell's dissent in Branti v. Finkel, where he pointed out that "The voters of Rockland County are free to elect their public defender and assistant public defenders instead of delegating their selection to elected and appointed officials. Certainly the Court's holding today would not preclude the voters, the ultimate "hiring authority," from choosing both public defenders and their assistants by party membership. The voters' choice of public officials on the basis of political affiliation is not yet viewed as an inhibition of speech; it is democracy. Nor may any incumbent contend seriously that the voters' decision not to reelect him because of his political views is an impermissible infringement upon his right of free speech or affiliation. In other words, the operation of democratic government depends upon the selection of elected officials on precisely the basis rejected by the Court today."
Yet that didn't carry the day, presumably because voters - the sovereign - are entitled to make election decisions on bases that government officials may not use in appointment decisions. This may be especially unappealing when the basis is race or religion, as opposed to ideology, but I think the underlying constitutional analysis must be similar: The voters' choice of public officials on any basis the voters please, and not just ideology, is democracy. Surely if, to borrow from Ricci, black voters give preference to black candidates over more qualified white or Hispanic candidates - for any office, high or low - that is no constitutional violation.
Alan Brownstein writes:
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?
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Vance R. Koven
Boston, MA USA
vrkoven at world.std.com<mailto:vrkoven at world.std.com>
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