Growing up, my father was my source for all things political and historical.  He took joy in keeping me apprised on current events around the world, and he ultimately inspired my early curiosity in politics and law.  But he himself had never worked in government, law, or politics.  I was in elementary school when I asked him why he never pursued any of those career paths.  His response became forever etched in my brain: When he was growing up, a Christian in the Middle East could never aspire to serve in government. He and my mother, both members of a religious minority, left the Middle East in the late 80s so that their daughter would grow up in the land of the free.  Imagine my surprise and disappointment, however, when I learned a United States senator harangued a citizen for his religious beliefs in the course of a Senate hearing.

Last week, the Senate Budget Committee held a hearing on Russell Vought’s nomination as OMB Deputy Director.  During the hearing, Senator Bernie Sanders devoted his allotted time to questioning Vought on two issues: his position on repealing the estate tax and an article Vought had written in support of his religious alma mater’s “statement of faith that includes the centrality of Jesus Christ for salvation.”  In short, Vought’s post defended a mainstream Christian belief that only Christians can enter heaven.  Sanders pushed Vought on his article and whether Muslims would be permitted into heaven.  After interrupting Vought’s attempt to fully explain the tenets of his belief, Sanders concluded his questioning, noting he could not support Vought because he is “really not someone . . . this country is supposed to be about.”  It seems, however, that the junior senator from Vermont could use a reminder about what America is in fact about.

To say this country was founded on religious liberties may be trite, but that makes the statement no less true.  In the Supreme Court’s most recent Free Exercise case,[1] the Chief Justice recounts a series of English laws that empowered the monarch to appoint the Church’s officials.[2]  Specifically, the Act of Uniformity in 1662 empowered the king to review and change the Book of Common Prayer as he saw fit, and church ministers were obligated to declare their allegiance to the Book.  And so, “[s]eeking to escape the control of the national church, the Puritans fled to New England, where they hoped to elect their own ministers and establish their own modes of worship.”[3]  The desire for religious freedom became enshrined in the Constitution and our religious liberties continue to be a part of America’s allure.

Sanders’s line of questioning is problematic for multiple reasons, particularly because he has opened a Pandora’s box of inquiry into religious beliefs that may rarely satisfy him.  More importantly, such a line of questioning serves to erect an impermissible religious test that betrays the core American principles of religious freedom and separation of church and state.  First, Sanders’s questions indicate his apparent belief that only nominees who adhere to universalism or universal salvation are qualified to serve in the U.S. government.  His line of questioning, which specifically inquires as to whether Muslims can enter heaven, appears to be prompted by concerns of Islamophobia.  During his testimony, he read letters from various Jewish and Muslim religious groups that expressed anxiety over Vought’s nomination.  The irony in Sanders’s questions, however, is that in his attempt to protect Muslims, he fails to realize that Muslim scholars and writers have argued that Islamic scripture describes an exclusivist outlook for salvation.[4]  Would he subject such Muslims to the same questions he subjected Vought to?  Should Muslim nominees to federal positions be required to discuss whether they support the jizya, a tax once levied by Islamic societies against non-Muslims?  Sanders may very well find himself surprised or disconcerted by the possible responses.  His questions reflect his well-meaning desire to ensure equality, but it is unclear what religions or specific religious beliefs would fully satisfy Sanders.

Second, and fundamentally, Sanders’s refusal to support a nominee for his religious beliefs is un-American at best and unconstitutional at worst.  We do not reduce people to the religious beliefs they ascribe to.  We judge public officials on their ability to uphold the Constitution—not the holy text their hands rest on when they swear their constitutional oath.  Article VI of the Constitution requires that “all executive and judicial officers . . . shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.”[5] Perhaps the most notable case involving religious tests was Torcaso v. Watkins,[6] in which the Supreme Court struck down a provision in the Maryland Declaration of Rights that barred individuals who refused to declare their belief in God from holding public office.  In that case, the appellant was appointed to the office of the Notary Public but was denied his commission because he did not declare his belief in God.  Although the Court decided this on First Amendment grounds, it found that the state’s mandated religious test had impermissibly put the state’s “power and authority . . . on the side of one particular sort of believers—those who are willing to say they believe in ‘the existence of God.’”[7]  Citing to Everson v. Board of Education,[8] the Court emphasized that the Establishment Clause prevents the government from “pass[ing] laws which aid one religion, aid all religions, or prefer one religion over another.”[9]  Yet, Senator Sanders’s own words at the Budget Committee hearing indicated he was mandating a religious test that favored a “particular set of believers”: universalists.  Senator Sanders did not inquire into Vought’s qualifications or even whether Vought’s religious beliefs would be incompatible with his constitutional oath.  Rather, Sanders used the power of his position as a United States senator to express his preference for specific beliefs about eternity.

To be sure, Sanders’s comments at the hearing do not rise to the level of a law automatically disqualifying a nominee for his religious beliefs.  And this issue is unlikely to be litigated, given Sanders’s immunity under the Speech or Debate Clause and the courts’ unwillingness to jump into political conflicts between the branches.  But as Sanders harassed Vought for his religious beliefs, he violated his independent oath to the Constitution, which protects the very same beliefs Sanders rejects.  Sanders failed to realize that the Establishment Clause was intended to not only protect the state from religion, but to protect religion from the state.  The founding fathers feared the state’s ability to corrupt the purity of a faith.  If the Church became too reliant on the state, it could alter its message—perhaps to avoid the risk of offending the state—to make it more palatable.

In fact, minutes after Sanders’s questioning, Senator Chris Van Hollen jumped in to defend Senator Sanders’s questioning, sharing his more palatable Christian beliefs.  Van Hollen chided Vought’s “condemnation” of other faiths and argued that the Christian faith requires  “recognizing lots of ways that people can pursue their God.”  Certainly, there are Christians who share Van Hollen’s beliefs.  But a Senate hearing is never the appropriate—or even a constitutionally permitted—forum for theological discussions.  Questions about salvation and universalism should be debated at length within the church and the among the American people.  But one man’s religious beliefs—which have no bearing on his ability to carry out his job—were never supposed to be part of an official government hearing. Complex theological questions about eternity were never intended to be reduced to a ten-second soundbite that could satisfy one senator’s constituents or interest groups.

As this administration struggles to fill key posts, Sanders can serve the American people by focusing on nominees’ expertise and their abilities to accomplish the tasks they are charged with.  The senator should have confined his questions to Vought’s views on the estate tax.  Or, perhaps he’d prefer returning to an era where people were barred from serving as a government official or church minister without pledging to adhere to the religious tenets promulgated by the government.  Thankfully, the Constitution does not give him that option.  Senator Sanders would do well to remember that “what this country is about” includes countless people who left their homeland to escape precisely his questioning and the professions of faith he appears to mandate.

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[1] Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012).

[2] Id. at 182.

[3] Id. (citing T. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 3(1986); McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1422 (1990)).

[4] See Mohammad Hassan Khalil, Salvation and the ‘Other’ in Islamic Thought: The Contemporary Pluralism Debate (in English), 5 Religion Compass  511 (Sept. 2011).

[5] U.S. Const. art. VI (emphasis added).

[6] 367 U.S. 488 (1961).

[7] Id. at 490.

[8] 330 U.S. 1 (1947).

[9] Torcaso, 367 U.S. at 493.