Should senators ask Alito about the role of his faith?
If confirmed, he would become the fifth Catholic among the nine justices on the Supreme Court.
One of the defining characteristics of American liberty is that a person's religious faith - or lack of religious faith - is generally a private matter outside the realm of government concern.Skip to next paragraph
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Indeed, Article VI of the Constitution bars any religious test for prospective government officials.
But now, President Bush's nomination of Samuel Alito to a seat on the US Supreme Court is raising a sensitive question: To what extent should a nominee's religious faith be a legitimate area of inquiry during Senate confirmation hearings?
The issue arises as Judge Alito stands at the threshold of making Supreme Court history. Should he win confirmation, he will become the fifth Roman Catholic among the roster of nine justices, marking the first time a majority on the high court would be Catholic.
It is a remarkable development, considering he would be only the 12th Catholic justice on a court that has seen the service of more than 100 justices.
But in a country with a tradition of separation between church and state, any focus on Catholicism seems to some analysts more a relic of anti-Catholic prejudice than a well-intentioned effort to examine Alito's temperament, intellect, or judicial philosophy.
"The question is fidelity to the law," says Douglas Kmiec, a constitutional law professor at Pepperdine University School of Law. "So it is entirely appropriate for the Senate to make that inquiry. What is inappropriate is for the Senate to only make that inquiry of Catholics."
He also says, "The history of those Senate inquiries is that [Catholics] are the only people who have been asked." The late Justice William Brennan, Justices Antonin Scalia and Anthony Kennedy, and, most recently, Chief Justice John Roberts, were all asked if their Catholic faith would interfere with their ability to uphold the Constitution and the laws of the United States, Professor Kmiec says.
Now the question is emerging anew as supporters and opponents gear up for what analysts say could become judicial-confirmation Armageddon. Some see such questions as a form of anti-Catholic bigotry. Others see complaints about religious questioning as being part of a campaign to head off aggressive interrogation.
"It is a tactic aimed at shutting down discussion on a crucial area of legal philosophy," says the Rev. C. Welton Gaddy, president of the Interfaith Alliance. "It is very difficult to get into the process without being labeled anti-Catholic. And that is by design by people on the religious right."
Mr. Gaddy adds, "In reality, it is not about religion. It is about politics."
Many older Americans are aware of the so-called Catholic question from the way presidential candidate John F. Kennedy responded in 1960 to a group of ministers who expressed their concerns that a Catholic president might have dual loyalties to both the US and the Vatican.
Mr. Kennedy answered: "I do not speak for my church on public matters, and the church does not speak for me." The response went a long way in opening doors for American Catholics seeking positions of leadership in a country once dominated by Protestants. But many are asking why the question is still arising in 2005.