If Voters See Mitt Romney's Mormonism as a Negative, Are They Violating the Spirit of the Constitution's Ban on Religious Tests?

There is a great deal of talk this week about the effect of Republican presidential aspirant Mitt Romney's being Mormon on his prospects for becoming his party's candidate. Romney himself delivered an address yesterday focusing broadly on the role of religion in public life. Meanwhile, polls suggest that many Americans, particularly Evangelical Christians, are disinclined to vote for a Mormon for President.

Some analysts have condemned a voter bias against Mormon candidates as violating the spirit, if not the letter, of Article VI of the Constitution, which states that "no religious Test shall ever be required as a Qualification for any Office or public Trust under the United States." (Indeed, Douglas Kmiec, who wrote a FindLaw guest column supporting Romney, made such an intimation.)

Other analysts have asked, with some justification, how a candidate like Governor Romney can urge religious conservatives to support him because he shares their religious values, yet at the same time suggest it is inappropriate for voters to take his Mormon faith into account in a negative way when they cast their votes.

We have several thoughts on these complex issues, from both a political and legal perspective.

The Historical Reality Is That Informal Religious Tests Have Always Existed in America

First, solely as a description of American history, culture and political attitudes, we find the way that some commentators have characterized the issues surrounding Romney's faith to be curiously incomplete. To these critics, voter antipathy toward a Mormon candidate reflects a return to unseemly political sectarianism, and to a religious litmus test, that was supposed to have been extinguished from the presidential electoral landscape by the election of John F. Kennedy, a Catholic, in 1960.

What is surprising about these criticisms, however, is their apparent disregard for the reality that informal religious tests and barriers have always been with us, and have remained with us even after President Kennedy. No one would doubt the insurmountable obstacles that exist today to prevent a Moslem, a member of any number of other faiths that, at least in the U.S., are outliers, or someone who possesses no faith at all and thus is an atheist or agnostic, from being elected President. Numerous polls confirm that, in practical terms, the door to the Oval Office is closed to members of these communities.

Thus, the essential practical question to be asked is not whether such an informal religious test exists in the minds of American voters; it clearly does. Rather, we should ask whether the members of the Mormon faith are also among the many groups for whom the Presidency is politically inaccessible due to their choice of faith.

The "no informal religious test" position may well be a worthy ideal. Indeed, as we will explain shortly, we both subscribe to it, when it is carefully construed. But it is important always to remember that this ideal bears little resemblance to current political reality, and that
the burden of this religious disability extends far beyond, and indeed is a much bigger problem for many groups other than Mormons.

Are Individual Voters Ever Government Actors and Therefore Bound by Constitutional Limits Such as the Ban on Religious Tests?

It is unclear whether those who invoke the Constitution's ban on religious tests for officeholding in discussing Governor Romney's situation actually believe that Article VI's prohibition applies to the decisions a voter makes in a presidential primary or general election. While this idea - that the Constitution governs individual voters in some circumstances - may seem novel, we think it raises interesting and unanswered questions. The issue of when private citizens performing public actions should ever be considered "government actors," and therefore considered to be bound by constitutional values and subject to the Constitution's limitations, is a complicated and murky topic. Some principles should be clear, though.

First, the fact that people vote secretly does not make voting an essentially private - as opposed to public - action. Privacy in voting is justified, at a minimum, by the need to avoid bribery and coercion in elections; if everyone's vote were discernable, then deals and threats could be enforced in a way that jeopardized democracy. Thus, we would probably insist on privacy in voting even if we thought people's votes were public decisions that should conform to public norms.

Second, voters are, indeed, clearly government actors for some constitutional purposes. When voters pass initiatives, they are clearly subject to many constitutional constraints. An initiative measure that could be proven to have been motivated by racial animus, for instance, would run afoul of the Equal Protection Clause. An initiative process for making local personnel decisions might also implicate constitutional ideals. For example, if a town required all City Managers appointed by the City Council to be approved by popular vote, then a racist electorate might very well violate the Fourteenth Amendment.

In a similar vein, citizens serving on juries are bound by constitutional norms of due process and race neutrality, among others, when they decide cases. Proving wrongdoing by initiative voters and jurors may be difficult, but an enforcement problem should not be confused with the question whether there is a legal constraint in the first place that ought to be enforced.

Third, and perhaps most importantly, how far we extend the Constitution to reach arguably private conduct might depend on which part of the Constitution we are extending. No one, for instance, would argue that it would violate the First Amendment's free speech provisions for voters to reject a presidential candidate because of his ideas, even though we surely would not allow government officials to censor the candidate from expressing them. We tend to stretch the so-called "state (or government) action" idea farther when certain constitutional norms, like racial equality, are involved than when others, like procedural due process or freedom of speech, are involved.

So even if presidential voters are government actors for some constitutional purposes, and we concede that is an open question, we would still have to decide how far to stretch the particular provision banning religious tests for officeholding. That itself is a difficult question, to which we have no firm answer. We do note, however, that when adopted, the Constitution's ban on religious tests for office-holding was quite novel; in 1787, eleven states imposed formal religious qualifications upon their state government officials. We note also that, without the foresight of the Framers here, the nation might have been denied the presidential service of people like Thomas Jefferson and Abraham Lincoln, who had no explicit religious affiliation.

Thus, extending the religious tests clause to apply to voters, while perhaps somewhat radical, might for some people be within the radical spirit of the provision itself.

If Voters Seek to Respect the Constitution's Religious Discrimination Ban, How Should That Change the Way They Think about Candidates?

If voters were to respect the Constitution's ban on religious tests for officeholding, what, precisely would that mean? To answer that question, we need to examine more carefully the way in which government generally may take account of religion under our constitutional system -- and consider whether this existing constitutional framework provides a useful way to think about the ostensible dilemma suggested by candidates such as Governor Romney, who want voters to support them because of shared religious values, but who also suggest that it is improper for voters to hold their religious beliefs against them when casting their ballots.

For Free Exercise and Establishment Clause purposes under the First Amendment, we tend to draw (perhaps without realizing it sometimes) a line between two kinds of religious beliefs - those that relate to moral and ethical issues, and those that relate to worship, ritual and the answer to transcendent questions about the nature of God, life after death, and other strictly theological matters. Both kinds of beliefs are clearly religious in that they have a religious grounding and origin. But we treat these two kinds of religious beliefs differently for constitutional purposes, out of a widely-shared sense that the former category is clearly and legitimately related to government and law, while the latter is not.

So, for example, while it is unconstitutional for government to compel acts of worship or the performance of religious rituals, it is not unconstitutional to require people to obey moral mandates codified into law, even when those moral mandates are grounded on, or derived from, majoritarian religious beliefs. The reason for this distinction is obvious to most people: The government does not need to control the practice of religious rituals and acts of worship in order to do its job. But it does have to ground law and public policy on some moral and ethical foundation, and most moral and ethical foundations have historically had religious connections.

The line between these two kinds of religious beliefs will not always be easy to draw, of course. For example, one might argue about whether certain dietary regulations - e.g, the prohibition on eating meat with milk -- reflects an ethical standard about respect for animals, or instead is better understood to be a ritual requirement devoid of moral meaning. But difficult as this line is to draw, we must draw it in the constitutional realm, and perhaps (we submit) in the electoral realm as well.

We concede that the line between these two categories may be particularly hard for conscientious voters to draw when people perceive a correlation between a person's commitment to certain religious tenets, and his or her outlook on certain policy questions; some may argue there is a connection between beliefs about transcendent matters -- God, heaven, modes of worship, and similar issues -- and certain moral values. People who hold the "wrong" beliefs about God, the argument would run, are likely to hold unacceptable moral values as well.

Yet it is precisely this kind of thinking about a correlation between sectarian theology and personal or public morality that the ban on religious tests for officeholding seems to reject. Of course, government agencies in appointing officers, and voters when they elect candidates, are empowered, and, indeed, encouraged, to discern and evaluate (and sometimes reject) a person's moral, ethical and policy positions, even when those positions may have been influenced by the person's religious convictions. But if government and voters can use an individual's abstract theological views as a proxy for the candidate's moral character and public policy commitments, the prohibition against religious tests would have little meaning or purpose.

This, it seems to us, was one of James Madison's primary insights in his famous Memorial and Remonstrance Against Religious Assessments. In no uncertain terms, Madison condemned government's using "Religion as an engine of civil policy." Madison certainly recognized that moral values are often derived from religious beliefs, and that these values may properly influence public policy. What he opposed was any attempt by government to make core religious beliefs about the nature of God and modes of worship either the subject of government regulation or the beneficiary of government support, in order to further those values or policies. To attempt to do so, he contended, was an "arrogant pretension" and "an unhallowed perversion of the means of salvation."

The Bottom Line: Romney Isn't Being Inconsistent, But Relying on an Age-Old Distinction

So the moral of our story is this: It may well be that Mitt Romney is not, in fact, being inconsistent when he tells religious conservatives to vote for him because he shares their religious values, but also tells people that they should not hold his faith against him when they enter the ballot booth. He may simply be implicitly relying on a distinction we see as running throughout the Constitution, between religiously-inspired ethics and religious dogma.

We think that when people express concerns about the Mormon faith and describe it in negative terms, they are likely referring to certain religious tenets relating to worship, ritual and transcendent matters. Romney may be saying (we think correctly) that those kinds of religious beliefs should not be an issue in American politics. However, religion-influenced moral and ethical values properly belong in the political arena and Romney, like all the candidates, is (or should be) very willing to be judged on those beliefs.

Similarly, we may decide not to support Mr. Romney because of those latter beliefs -- because of his positions, for instance, on stem cell research, abortion rights, same-sex marriage and many other issues related to morality and ethics. The source of Romney's values on these issues may be religious, but it is perfectly appropriate for us to take these faith-based moral values into account in deciding whether not to vote for him. That's not a religious test; that's a presidential election.