The original United States Constitution – the one promulgated in 1787, or 230 years ago this week – has one and only one reference to religion. In Article VI, Section 3, it reads that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”
Can Abdul El-Sayed, who is running for the Democratic nomination to be governor of Michigan, rely upon this language?
El-Sayed could be America’s first Muslim governor
Campaigning to become the nation’s first Muslim governor, El-Sayed is running in a crowded and competitive field. But El-Sayed has already raised a million dollars, demonstrating a surprising level of support this early in the race.
“No one expected El-Sayed to raise that kind of money — no one,” pollster Ed Sarpolus told the Monroe News. And no one is quite sure what to expect from voters in how they consider Dr. El-Sayed’s name and his religion when they’re casting their ballots.
El-Sayed, an epidemiologist, is quick to invoke the language from Article VI, and point out to voters that his faith is no disqualification from his service.
“My constitution also reminds me that there is no religious test to citizenship or leadership in this democracy,” he wrote in an op-ed for the Traverse City Record-Eagle.
El-Sayed is right about the language. But his logic fails if he assumes the prohibition against religious tests somehow forbids voters from taking account of his religion when casting their ballot.
The First Amendment protects against government – not private – discrimination
The Constitutional prohibition only limits action by the government, and not the choices of any of its citizens.
Two years after the language of the “no religious test” clause, the addition of the Bill of Rights to the Constitution gives still more texture to America’s nuanced approach to religion:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
That combination, in the very first words of the First Amendment, makes it clear that while the federal government may not make laws that establish or “respect” an existing religious denomination, Congress also may not do anything that prohibits the free choices and actions of believers and non-believers.
Interesting, the “no religious test” has never been litigated. In part, that’s because the First Amendment’s establishment/free exercise clause duality has sucked up all the jurisprudential oxygen.
Indeed, in the 1961 case of Torcaso v. Watkins, the Supreme Court used the First Amendment, and not the “no religious test” language, to strike down religious tests for any public office in any of the states. That extended the prohibition from federal offices to all public offices.
Hence, if the Muslim El-Sayed were to be elected, and someone, somehow forbade him from moving into the governor’s mansion – that would be unconstitutional.
But the hard reality is that if voters choose not to elect him because they don’t like how he prays, he will have no recourse. There will be no recount.
El-Sayed’s Muslim faith will be a major factor
So, if El-Sayed ultimately falls short, there may be many who attribute his loss to Islamaphobia or racism. Those same people are trying to preemptively shame anyone who would dare make an issue of any aspect of a Muslim candidate’s faith in a political campaign, and they will likely succeed in keeping anti-Muslim public comments to a minimum.
That doesn’t mean, however, that they will succeed in getting anti-Muslims to change their mind.
The more likely outcome of invoking the no-religious-test clause to generate support for El-Sayed is that those who oppose him because of his faith will dig in their heels. It’s also possible that those who think there are legitimate questions raised about the role of Islam in a pluralistic society will resent being silenced and/or tagged as bigots.
Fortunately for all of us, any citizens can cast his or her ballot for whomever she want – and for any reason she want to –and there’s nothing that any candidate or Constitution can do about it.
(Screenshot from a video of Abdul’s announcement of his bid for governor.)