Catholic? Protestant? Gorsuch’s religion doesn’t impact his skill

The Supreme Court nominee confirmation hearings began this week, and in the weeks since President Trump selected Tenth Circuit judge Neil Gorsuch to fill the late Justice Scalia’s vacant seat on the bench, commentators have focused on Gorsuch’s personal faith. Is he Episcopalian or Catholic? Is he a “good” faith practitioner? What does he believe about religion? As recently as Monday, CNN published an article highlighting Gorsuch’s religion as “complicated.”

Here’s a better question: Why does any of this matter to his qualification to sit on the High Court? The short answer is that it shouldn’t.

{mosads}According to the U.S. Constitution in Article VI, Section 3, no federal office holder or employee can be required to adhere to or confess any particular religion as a prerequisite for holding their federal office. Curiously, public speculation about the particular confession of faith or adherence of Neil Gorsuch seems to have entirely forgotten about this constitutional mandate.

The Senate questioning may be poised to forget this constitutional prohibition as well. As the questioning continues, the Senate must very carefully craft its questioning so that its inquiry does not intrude into the personal, private religious beliefs, but rather focus solely on judicial decision-making and how Judge Gorsuch might follow the Constitution in First Amendment matters of free exercise of religion.

This is a very important distinction. Certainly a judge can interpret and apply the Constitution as the highest law of the land without necessarily having to subscribe to any particular religion whatsoever. This is in part why the Founders specifically prohibited any religious tests for federal officers. They knew all too well what happens to freedom and liberty when the church and the government are the same.

The proper constitutional role of the government is to preserve and protect free exercise of religion, not to proscribe it in any particular form. This is essentially what Jefferson meant by a “separation of church and state,” not that all semblance of morality must be devoid from civil government or that religious persons cannot rightfully and competently serve in government. There just cannot be a test based on religion for fitness of office.

Further, the judicial branch has absolutely no legislative or policy decision-making authority. Its only job is to review whether the actions of the coordinate branches (and in limited instances state action) are authorized under the limited powers given to that branch.

As Gorsuch rightly said in written opinion, “Often enough the law can be “a ass — a idiot,” [citing Dickens’ Oliver Twist] and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels.”

Gorsuch succinctly explains that a judge is a unique government agent among the three coequal branches. The legislative and executive certainly have policy-making authority and are necessarily political. The judicial branch should never be political, which is why it is set off as a separate and distinct branch, and why its government officers should arguably be the most immune to probes and questions of personal religion.

Originalism in the context of the U.S. Constitution is the judicial philosophy that requires a judge to apply the law rather than their own individual policy preferences, in areas of exercise of religion or any other policy consideration.

But the judicial branch has become unconstitutionally political. The recent decisions in the case of the florist who declined to participate in a same-sex wedding and the Hawaii, Washington State, and Ninth Circuit opinions on Trump’s travel suspensions showcase judicial activism through judges concerned with the underlying policy rather than the constitutionality of the action.

If the liberals claim Trump’s “Muslim ban” was unconstitutionally creating a religious test (it wasn’t) for foreign nationals who aren’t even governed by the U.S. Constitution, then why are religious tests tacitly allowed for Supreme Court nominees through the confirmation process?

The Senate shouldn’t allow it. Gorsuch’s personal religion shouldn’t matter. We’ll see if it does matter to securing the 60 votes needed for confirmation.

Jenna Ellis is a constitutional law and criminal defense attorney, a law professor at Colorado Christian University, where she directs the legal-studies program, a fellow at the Centennial Institute, and the author of “The Legal Basis for a Moral Constitution.”

The views of contributors are their own and not the views of The Hill.