Advancing Christian Faith and Values,
Defending Religious Liberty for All,
Supporting Civility and the Common Good
through Preaching, Teaching, Writing, Activism and Reasoned Conversations

www.donaldshoemakerministries.com

Religious Liberty Vigilance –
May Nominees for Government Positions
Be Disqualified over Their Religious Beliefs?

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.

– Article 6, Section 2 of the Constitution of the United States

Keith Ellison of Minnesota, a Muslim, was elected to the House of Representatives on November 7, 2006, and sworn in on January 4, 2007. In a private replay of the official swearing-in on the House floor, he took his oath of office with his hand on the Qur’an. It was an English translation that once belonged to Thomas Jefferson and came from the Library of Congress.

His action brought a ton of criticism. Whatever the criticism, the important thing to remember is that Congressman Ellison was well within his Constitutional rights to do this. Neither his faith nor this action could make him unfit for office according to Article 6, Section 2 of the Constitution.

Fast-forward to 2017. Russell Vought was President Donald Trump’s pick for deputy director of the Office of Management and Budget.

Senator Bernie Sanders repeatedly challenged Vought’s religious beliefs (on the afterlife!) and therefore his qualification to serve in public office.
“This nominee is really not someone who is what this country is supposed to be about,” said the senator. “I will vote no.”

Sanders notwithstanding, the Constitution says no religious test for office.

Fast-forward once again to December 2017, and Amy Coney Barrett is being questioned in the Senate Judiciary Committee for an appointment to the 7th Circuit Court of Appeals. Senator Diane Feinstein (D-CA) said,

Why is it that so many of us on this side have this very uncomfortable feeling that dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern.

Barrett assured the committee that her faith would not influence her jurisprudence. Now that she has been confirmed for the Supreme Court and sworn in, she is the sixth Roman Catholic* on the Supreme Court—they may share a common faith but hardly a common philosophy of jurisprudence!

“Without regard to one’s faith or political philosophy”—that’s how the judicial branch of government should operate, unlike the legislative and executive branches, where members of each may bring their philosophies of life to the table—even those philosophies that are faith-based.

But once again, the Constitution forbids any religious test for office. This protection may become even more important in years to come if leftism and other secularisms become more dominant in American life.

* Other Roman Catholics on the U.S. Supreme Court: John Roberts, Sonia Sotomayor, Samuel Alito, Clarence Thomas and Brett Kavanaugh

Political Shibboleths that
Mean Absolutely Nothing

“Progressives”

• I just don’t get this one! All sides use it to describe those who advocate increased government involvement in most aspects of life. The word today describes leftists. The mystery is why non-leftists would use the word “Progressives” to describe those they feel are fundamentally on the wrong track.
• “Progressive” is a positive word. Its opposite is “regressive. “ No opponent of so-called “progressives” wants to be thought of as regressive.
• The government’s involvement may be regressive rather than progressive, if the particular activism is unwise or unjust—like curtailing religious liberty.

“We’re on the right side of History” or “They’re on the wrong side of History.”

• From the human side, who knows the course of history?
• God knows the course of history—the full integration of his Kingdom in the world. But most who speak about “the right side of history” certainly don’t mean this.
• The phrases reflect political agenda more than any kind of historical progress.

“We expect them to pay their fair share.”

• Please quantify “fair share.” Actually “fair share” is a notion in motion and appears to be like helium—always rising like California’s steep graduated income tax.
• Notice the phrase is always used in the third person (“their fair share”), never in the first person (“my fair share” or “our fair share”) or second person (“your fair share”). Thus, the statement serves to divide and polarize.

“We don’t want to turn back the clock.”

• Why not? The past wasn’t the wrong path if it was the better path.
• It would depend on the issue. No turning back to “Jim Crow” laws. But immigration law and policy may have (at least at times) been better then than now.
• I suspect many living in Turkey today under President Recep Erdogan, or in Russia under Vladimir Putin, or in other countries that have regressed from hopes for democracy they had just a few years ago wouldn’t mind “turning back the clock.”

“The American People want…think…expect…”

• Euphemism for what the candidates and their supporters want, think, or expect.
• “The American People” is too broad and diverse to want and think alike, except for some very basics like being safe (but they may disagree on how best to achieve it).

“I will be the candidate for ALL the people.”

• No you won’t! If supporters win, opponents lose on many issues important to them.
• Once elected, candidates will listen to their own side primarily.

Appendix: Religious Liberty during a pandemic
Excerpts from Denver Bible Church v. Azar,
U.S. DISTRICT COURT FOR THE DISTRICT OF COLORADO (October 15, 2020)
Source: The Volokh Conspiracy, October 20, 2020. Underlining mine.
For more information, read the actual court decision or The Volokh Conspiracy.

Quick Summary: Houses of worship, which the Colorado order labels “critical” institutions, must be treated at least as well as other critical institutions.

The State rightly argues that during a public-health emergency, courts must be particularly mindful of the complex interaction between constantly evolving scientific understanding and policymaking, and the court recognizes that the decisions being made by the State Defendants here are truly matters of life and death…

But the existence of an emergency, even one as serious as this one, does not mean that the courts have no role to play, or that the Constitution is any less important or enforceable. And while the religious, like the irreligious or agnostic, must comply with neutral, generally applicable restrictions, the First Amendment does not allow government officials, whether in the executive or judicial branch, to treat religious worship as any less critical or essential than other human endeavors. Nor does it allow the government to determine what is a necessary part of a house of worship’s religious exercise…

In the earliest days of a pandemic or other true emergency, what may be the least restrictive or invasive means of furthering a state’s compelling interest in public health will be particularly uncertain, and thus judicial intervention should be rare. But as time passes, scientific uncertainty may decrease, and officials’ ability to tailor their restrictions more carefully will increase. What may have been permissible at one point given exigencies and realistic alternatives in the face of those exigencies may not remain permissible in the long term…

While the order designates houses of worship as “critical,” in practice it treats them differently from other “critical” businesses and activities, even those that pose a comparable risk of COVID-19 transmission. Plaintiffs highlight two restrictions in the order that, they contend, are unconstitutionally applied to houses of worship and burden their right to free exercise: occupancy caps for indoor worship services, and the requirement that worshippers wear a face mask for indoor services….

Public Health Order 20-35 creates exemptions for a wide swath of secular institutions deemed “critical,” …your local Home Depot, Walmart, King Soopers, and marijuana shop are not under any additional occupancy limitation other than the six-foot distancing requirement. Denver Bible Church and Community Baptist Church, by contrast, must comply with numerical occupancy caps, no matter how many people their sanctuaries might accommodate while maintaining six feet of distance between non-household members….

The State may have the power in general to decide what activities are and are not critical to ensure the health and safety of individuals and their households, and what tasks are necessary to carry out secular activities. But it does not have the power to decide what tasks are a necessary part of an individual’s religious worship. And while religious exercise is subject to truly neutral and generally applicable regulations, once the State begins creating exceptions for secular activities as it deems necessary, then it is obligated to treat religious activities no less favorably, absent a compelling reason….

The more serious problem is that Public Health Order 20-35 exempts secular settings that pose similar threats of prolonged exposure from the occupancy limitations and face-mask requirements imposed on houses of worship. What is the meaningful difference between, say, a warehouse, a restaurant, or an elementary school—where employees, diners, and students spend long periods in a closed-indoor setting—and a house of worship?

The best answer Colorado has is that “singing or speaking loudly propels respiratory droplets farther,” and that this kind of activity happens in houses of worship but not in those other settings. Dr. Herlihy likewise generalizes that “customs in houses of worship may also result in increased contact. For example, shaking hands, observing Eucharist, passing a basket, or showing a sign of the peace may all place people in closer contact th[a]n they would be in other settings.”

Perhaps. But shaking hands, passing items around, and showing a sign of peace have secular equivalents in many places of business or social settings. And as Dr. Herlihy admits, schools “also frequently have singing or loud, excited speaking.” Indeed, most outbreaks in Colorado have occurred at workplaces, schools, and businesses, not churches…

In the end, though, the court does not doubt the science underlying Colorado’s decisions. It accepts that the best available evidence says transmission of COVID-19 is more likely indoors when people are together for long periods of time.

But the orders reveal that in practice the State treats some activities as necessary, but those Plaintiffs seek to engage in as less so. This reflects the view that, as one court put it, it is practically impossible to restrict people from working together in person in places like schools, food-processing facilities, restaurants, and warehouses, but “churches can feed the spirit in other ways.” That may be true for many religious individuals and institutions, but it is not for Plaintiffs. And with due respect for both the State and the Seventh Circuit, this court does not believe government officials in any branch have the power to tell churches and congregants what is necessary to feed their spiritual needs…

Plaintiffs are likely to succeed on the merits of their free exercise claim for a simple reason. Having decided that the risk of allowing various activities to be exempt from the strictest Safer at Home rules is justified on the basis that those activities are critical and necessary, the State cannot decide for Plaintiffs what is critical and necessary to their religious exercise. With each exception Colorado makes for secular institutions, the failure to make the same exemption for houses of worship becomes increasingly problematic…

…Colorado’s failure to offer a compelling reason why houses of worship are subject to greater restrictions than warehouses, schools, and restaurants violates the First Amendment’s guarantee of the free exercise of religion…

All in all, based on their bona fide religious need to do so, Plaintiffs will be allowed to open their sanctuaries subject to the same capacity, social distancing, and masking rules that are applicable to other critical businesses, and will be able to permit congregants to remove their masks if and when it is necessary to carry out their religious exercise…