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Religious Test in California

 

The California Supreme Court has just enacted a religious test for judicial office, something specifically banned by the US Constitution.  In a policy aimed squarely at the Boy Scouts, the Court bans judges from participating in any youth groups that practice discrimination.  Although the Boy Scouts were the target since they ban homosexual adult leaders, the idiotic ban would apply to any group that practices what the Court deems to be “invidious discrimination”.  Since the Court appears to view as “invidious discrimination” anything that runs counter to the beliefs of the loony Left, one can foresee problems for judges who participate in Catholic, Evangelical, Orthodox Jewish and Muslim youth groups.

Of course this nasty little exercise in identity politics runs smack into Article Six of the United States Constitution that bans any religious test for public office:

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.

That this is a religious test no one should doubt.  In California the powers that be wish to punish those who have not fallen into lock step on homosexual rights and this travesty is but a small portion of this punishment.  Such attempts by government to coerce believers is precisely why the no religious test was placed into the Constitution.  One would trust that the “Justices” of the California Supreme Court would realize that what they have done is blatantly unconstitutional.  I assume they do, and they simply do not care, which is a fundamental betrayal of the Law and their function as Judges.

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Donald R. McClarey

Cradle Catholic. Active in the pro-life movement since 1973. Father of three and happily married for 35 years. Small town lawyer and amateur historian. Former president of the board of directors of the local crisis pregnancy center for a decade.

9 Comments

  1. Californacators are everywhere…especially sitting on the bench. Waterfront property in Death Valley coming soon I expect.

  2. As a point of clarification, the “no religious test” clause refers to federal office holders, not state. Indeed, several states had religious “tests” of varying kinds after the adoption of the US constitution. It’s only with the invention of the unconstitutional and highly-destructive-of-federalism incorporation doctrine by federal judges that these provisions are deemed applicable against the states.

    Ideally, California would be free to impose a religion test (or an irreligion test for that matter) on its officeholders; the people of that state would be free to express their view about the necessity of such a test without interference from the federal government, which, absent a clear constitutional mandate, really has no dog in the fight over how a particular state orders its affairs.

  3. “As a point of clarification, the “no religious test” clause refers to federal office holders, not state.”

    Debatable. The language is unclear in meaning due to the sentence also making state office holders take an oath to the Constitution. Clearly the framers of the Constitution intended it to apply only to the Federal government, but the language is open to a broader interpretation. In any case, I have absolutely no doubt that the no religious test would apply to the states under current federal jurisprudence. Religion tests also run afoul of the equal protection provisions of the Constitution, as well as the free exercise clause of the First Amendment. The religion test could also be attacked under the California Constitution and the religious freedom portion of the California work place discrimination act.

  4. I have no problem if the CA constitution forbids a religion test, or has a free exercise of religion clause which its own state courts could interpret and enforce.
    But the feds only have the ability to interfere because of a profoundly unconstitutional “incorporation doctrine” which has wreaked havoc on various state laws, from abortion restrictions to porn restrictions, to various criminal laws, and last but not least, to state laws defining marriage.

    There’s no debate: if several ratifying states had religious tests for state offices in their constitutions, and did so for years after the US constitution’s ratification, then the only conclusion is that the ratifiers did not intend to interfere with those existing state laws. It was only in 1961, using the judicially-created incorporation doctrine, that the SCOTUS held these state law provisions unconstitutional. Sadly, the states in question rolled over to this usurpation, like they have to all the other incorporation impositions.

  5. “I have no problem if the CA constitution forbids a religion test, or has a free exercise of religion clause which its own state courts could interpret and enforce.
    But the feds only have the ability to interfere because of a profoundly unconstitutional “incorporation doctrine” which has wreaked havoc on various state laws, from abortion restrictions to porn restrictions, to various criminal laws, and last but not least, to state laws defining marriage.”

    I find it hard to see how it is unconstitutional under the fourteenth amendment. The Slaughterhouse cases were clearly erroneous in their attempt to restrict the fourteenth to freed slaves.

    “There’s no debate: if several ratifying states had religious tests for state offices in their constitutions, and did so for years after the US constitution’s ratification, then the only conclusion is that the ratifiers did not intend to interfere with those existing state laws.”

    The intent of the ratifiers has zip to do with the Constitution. Of more interest is the intent of the Framers. Even then however, their intent does not prevail over the text of the Constitution,

  6. Stacking the court, which of course is what is happening here – making the court a political operator in these culture wars
    .
    (I hesitated to use the word culture– because it doesn’t seem like the war is between two competing cultures, but between culture and lack of it….just because secularism is so degrading
    .
    Anyway, progressives taking the court into the political weeds-does that mean that conservatives have to go into the weeds too to try to wrest the court back to its natal dignity? Use the same kinds of attempts to manipulate the system? try to stack courts?
    hope for the day when progressives can be denied?
    .
    A problem is that many Americans are like the personnel on this court in California- they don’t seen anything wrong with this.
    I guess we have to really work on the long range– for over a century they have been educating useful idiots– we need to bring up the competency of the average citizen to see hear and receive truth. We need miracles.

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