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Put a little faith in Roberts

Go ahead, ask him about his religious beliefs. As long as he puts the Constitution first, there should be no problem.

August 25, 2005|Mario M. Cuomo | MARIO M. CUOMO was governor of New York from 1983 to 1995.

FOR MORE THAN 20 years, some conservative clerics and politicians have bitterly criticized Catholic public officials for refusing to use their office to "correct" the law of the land. They demand that Catholic officials make political decisions reflecting their religious belief that abortion is tantamount to murder and work to overturn Roe vs. Wade and other laws that make abortion legal.

Most of the targeted officials have been Democrats such as Ted Kennedy, Gerry Ferraro and John Kerry. But now that Judge John G. Roberts Jr. -- their candidate -- has been nominated for the U.S. Supreme Court, the shoe is on the other political foot. Conservatives are outraged that another Catholic public official might be considered deserving of the same criticism. They demand that Roberts not be asked about personal beliefs, including religious ones, because it would amount to a "religious test" prohibited by the Constitution.

They are clearly wrong.

Article VI of the Constitution states two things: first, that all officials -- "judges as well as legislators" -- must take an oath swearing that they will support the Constitution as "the supreme law of the land," their personal beliefs to the contrary notwithstanding. It also states that no religious test shall be required as a qualification for any public office.

Generally, the courts have interpreted this to mean that no one shall be required to profess or deny a religious belief in order to be deemed qualified for public office.

There are two long-standing rulings on this issue. In 1961, a Maryland law was found unconstitutional for demanding that believing in God was a qualification for application as a notary public. And in 1978, Tennessee overturned a law that said members of the clergy could not serve as public officials.

No one is suggesting that being a Catholic or any kind of believer could by itself be a disqualification for a seat on the Supreme Court. Indeed, Roberts would be the fourth Catholic on the current court. The question about Roberts' beliefs in effect asks whether he would impose his own personal test, religious or otherwise, on his reading of the Constitution: Would he say he might ignore his oath to support the Constitution if faced with an overriding personal belief?

Conservatives' arguments that this is a religious test are disingenuous. Their discomfort is caused by the fact that the question presents Roberts with a Hobson's choice. Either Roberts says he would ignore his oath to support the Constitution, or insist he would put aside his personal beliefs and live up to his oath called for by the Constitution.

It's already clear, from Roberts' testimony at a previous confirmation hearing and his discussions with senators, that he almost certainly would say he would put aside his personal beliefs rather than dishonor his oath or resign. But that would leave the conservative critics with a dilemma. Do they criticize Roberts as they did Kerry and the other Democrats? If they do, it would be politically embarrassing. If they don't, it would only add to the divisiveness created by attempts to force religious beliefs into law through political intimidation.

Everyone involved should use this opportunity constructively, seeking to make religion the positive force in society that it should be, instead of another disruptive element in our fragmenting democracy.

The Senate Judiciary Committee should ask Roberts whether he would ever place his personal beliefs -- religious or otherwise -- above his oath to support the Constitution. Roberts would answer in the negative, as has Justice Antonin Scalia, another devout Catholic.

All sides should then acknowledge that there is no clear church teaching demanding that any public official -- legislative or judicial -- violate his or her solemn oath to support the Constitution. Indeed, Thomas More, the patron saint of lawyers and statesmen, urged that whenever possible, conflict among law, faith and public duty should be avoided. That's not difficult here, if all sides try.

In this pluralistic society, when we offer our religious principles as rules for others to live by, we should do so through persuasion and not coercion, by example and not just preachments.

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