‘NO RELIGIOUS TEST’

When President Bush spoke recently about Harriet Miers’ religious beliefs, he was trying to stem a storm of protest by several prominent conservative Christian leaders. They had hoped for a clearly recognized conservative.

Here is what he told reporters in the Oval Office: “People ask me why I picked Harriet Miers. They want to know Harriet Miers’ background. They want to know as much as they possibly can before they form opinions. And part of Harriet Miers’ life is her religion. Part of it has to do with the fact that she was a prominent woman and a trailblazer in the bar of Texas.”

Earlier, he had praised her as having a good character and being an outstanding lawyer. This was the first time he had mentioned her religious faith.

In citing her religious beliefs as a qualification for a seat on the Supreme Court, Mr. Bush came close to committing a careless affront to a provision of the U.S. Constitution. A clause in Article VI says, “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

That provision was the subject of sharp and prolonged debate among the framers of the Constitution. Maryland and Massachusetts required candidates for public office be Christians. New Jersey and the Carolinas required that they be Protestants. James Madison defended the provision as essential to full religious liberty. But a New Hampshire delegate warned that “a Turk, a Jew, a Roman Catholic, and what is worse than all, a Universalist may be President of the United States.”

Oliver Ellsworth, for whom the city of Ellsworth, Maine, is named, helped save the day in a stirring speech declaring that history showed religious tests to be “useless, tyrannical and peculiarly unfit for the people of this country.”

Justice Joseph Story, in his classic “Commentaries on the Constitution of the United States,” wrote: “This clause is not introduced merely for the purpose of satisfying the scruples of many respectable persons who feel an invincible repugnance to any religious test or affirmation. It had a higher objective: to cut off forever any pretense of any alliance between church and state in the national government.”

Justice Story thus linked the prohibition of religious tests to the separation of church and state, a phrase that does not appear in the Constitution. It does appear, however, in a letter President Jefferson wrote in a friendly exchange with the Danbury Baptist Association. He wrote of the First Amendment, in stating, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof,” that the American people were “building a wall of separation between church and state.”

The United States was and is a highly religious country, and the framers were mostly deeply religious. Mr. Jefferson, perhaps the most secularly minded of them all, closed his presidency with a statement declaring the central importance of morality and religion for the future survival of the state.

But many of the colonists had fled from the Old World to escape the bloodshed and persecution that grew out of established state religions.

President Bush should respect the Constitution’s limitations as well as the powers it has granted him.