The "Super Sneak" Religious Test

Over at Prawfsblawg, Paul Horwitz has a typically thoughtful and thorough post up about Miers and religion called "The Super-Sneak, Double-Back, Reverse Religious Test?"  Here's some of what he has to say:

1) A Religious Test?:  The first question is whether Miers is in some way either subject to disqualification as a nominee because of her faith, or would be if the administration had selected her solely or primarily on this basis.  Given what I've already written on this subject, no one will be surprised when I say the answer is, no. . . .

2) Transparency:  That doesn't mean one ought to be sanguine about how all this has played out.  One issue is that of transparency.  Is the administration defending its nominee one way privately and another way publicly?  On this point, some nuance is required.  I don't think an administration is in any way barred from discussing a nomination privately with its supporters (or opponents) in the Senate or elsewhere.  I don't doubt that this happens in all administrations, at least in the modern era.  Nor do I have any problem with the administration talking to, say, Dr. Dobson, a prominent religious conservative, in advance of announcing the nomination.  But I am disturbed -- not outraged, but disturbed -- by the impression I get that there is a good deal of space between what the administration is saying publicly about the nomination and the justifications they are offering, and assurances they are making, through private channels. . .

3) Cynicism and Clumsiness About Religion:  The last point is related to this one.  Although the administration has, somewhat clumsily, said that religion is relevant only as part of Miers' background and not to the question of how she would rule, I think any reasonable observer understands that it is largely playing a double game here: using Miers' faith on the one hand to make clear to conservatives that she will rule as they want and won't become another Souter, and retreating on the other hand to the position that religion is irrelevant to anything other than her character and private beliefs.  This is, I think, an illustration of the reasons why the metaphor of the wall between church and state was originally intended largely to protect religion from the state and not the other way around.  . . .

4) Double Standards and the Becket Fund:  Finally, let me refer back to my earlier discussion of the Becket Fund, which earlier had warned Senators that it would file an ethics complaint against any Senator who "use[s] fervent religious faith...as itself a disqualification for public office."  The Religious Test Clause, of course, does not refer to religion as a disqualification, but to the use of religious tests "as a Qualification to any Office . . . under the United States."  Although the Fund rightly points out that this meant in practice that religion was used to disqualify individuals because of their faith, similar issues are raised where an administration treats a particular religious faith as a prerequisite for the holding of public office, particularly if that means some folks need not apply. . . .

Let me close this lengthy treatment with a quote from Joseph Cella, president of a Catholic-based advocacy group, in the National Review Online:  "The bottom line is that while some might think Miers’s religion provides an early indicator of her view of the interplay between morality and the law, her faith does not do much to bolster the case that she would be faithful to the Constitution. By itself, it provides no reason to support or oppose her nomination. Faith is too precious to be used as a trumpet or as a sword by those who either support or oppose a nominee."

There is a lot more.  Check it out.