COMMENTARY: ‘Religious test’ counterintuitive to U.S. interests

Just the other day, federal judges in Hawaii and Maryland ruled that President Trump’s executive order on immigration is unconstitutional because it imposes a religious test on immigrants. That, presumably, is because the order applies to immigrants from six predominately Muslim nations.

Or, that the order is unconstitutional because it violates the First Amendment provision on the “establishment of religion.”

These complementary theories are not entirely novel, but they are a different way of understanding the Constitution’s provisions on religion. Let’s take the “religious test” issue first.

The “religious test” provision is found in Article VI of the Constitution. It provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” It seems clear, or at least it should, that this language applies only to persons seeking federal office, either elective or appointive. Similarly, it would not seem to have anything to do with standards for immigration, there being no office of public trust involved.

Indeed, failing this provision, men like U.S. Rep. Keith Ellison, D-Minn., recently a candidate for chairman of the Democratic National Committee, could be excluded from membership in Congress. He, you see, is a Muslim. You might not like him, but if you feel strongly, move to Minnesota and vote against him.

Reid K. Beveridge

Then, of course, there is the First Amendment provision on freedom of religion. This, too, is often mischaracterized. Or more precisely, it is confused with the reference to a great “wall of separation” between church and state.

The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; … .” What the Founding Fathers meant by the “establishment of religion” was that Congress was prohibited from creating a state church, like those found in Europe. Examples are the Church of England in Great Britain, Roman Catholicism in Austria, France and Spain, Lutheranism in Scandinavian countries, etc.

In some part, that was because several of the original 13 states had official religions: Anglican in Virginia, Puritan (now Congregational) in Massachusetts, Catholic in Maryland, Baptist in Rhode Island. In other words, Virginians didn’t want to be Baptist and Rhode Islanders didn’t want to be Catholic. And further, the Founding Fathers didn’t want to perpetuate the idea that states could jail preachers from other traditions.

“Freedom-from-religion” advocates often argue the concept of “a great wall of separation” between church and state. The Constitution does not say this. The “great wall” phrase is from a letter then-President Thomas Jefferson wrote to a Baptist church in Connecticut in 1802. But remember this: Jefferson did not attend the Constitutional Convention in 1787. No, he was in Paris because he was U.S. ambassador to France that year.

The concept of a “great wall of separation” has a lot of admirers, and even some legal heft, because courts sometimes quote presidents. But it is not constitutional heft.

Jefferson was perhaps the most intellectually gifted of the Founding Fathers. But this doesn’t mean he knew more about the Constitution than its principal drafter, James Madison, or the president of the Constitutional Convention, George Washington.

Finally, the various courts ruling on President Trump’s immigration orders have introduced yet another wrinkle, which is raising, as a constitutional issue, comments made by Mr. Trump during last summer’s campaigning. Back then, Mr. Trump advocated banning all Muslims from entering the United States. This may have been effective rhetoric, but nearly everyone knew from the beginning that it isn’t possible.

Nonetheless, at least two of the federal judges in question, plus the Ninth U.S. Circuit Court of Appeals in San Francisco, have cited Mr. Trump’s comments as what President Trump really meant in these executive orders, even though they don’t say this at all.

What we really have here is an exercise in mind-reading. The judges conclude that Mr. Trump now wishes to exclude all, and only, Muslims because he said something like that in the heat of the campaign nine months ago.

Taken to their logical conclusions, this would mean that the United States can never have an immigration law that limits the number of immigrants from predominantly Muslim countries. Or to put it another way, Iran could send us an unlimited number of terrorists to blow up buildings and attack places like Dover Air Force Base.

And further, that any statement ever made in his/her lifetime by a person elected president can be litigated against the interests of the country.

Is that what we’ve come to?

EDITOR’S NOTE: Reid K. Beveridge has covered politics in Texas, Iowa, Wisconsin, Delaware and Washington, D.C. He is now retired at Broadkill Beach. He can be reached at Beveridgere@prodigy.net.

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