Are Amy Coney Barrett’s religious views fair game?

Some see the Constitution’s “no religious test” clause as preventing such inquiries. But others say asking about how religion shapes a nominee’s outlook isn’t necessarily discriminatory – and is, in fact, vital.

President Trump’s Supreme Court nomination of Amy Coney Barrett, a federal judge and former standout Notre Dame law professor, has set the stage for a high-stakes confirmation process.

Nominating anyone five weeks before the election would have been controversial. But Judge Barrett’s conservative Catholic background and membership in the People of Praise, a tightknit charismatic community, has raised particular concern on the left, despite liberal colleagues praising her as a brilliant legal thinker. If confirmed, she would cement a two-thirds conservative majority on a court likely to consider hot-button issues from abortion to “Obamacare” to the rights accorded LGBTQ individuals. While likely to scrutinize her judicial record, Senate Democrats have been careful so far to avoid any appearance of an attack on Judge Barrett’s religious beliefs after being criticized for doing so in her 2017 confirmation hearings to the U.S. Court of Appeals for the Seventh Circuit.

The U.S. Constitution includes an explicit prohibition on religious tests as a qualification for federal office, including judicial posts. However, some argue that the purpose of that clause is to protect against a practice then applied in England to keep Catholics out of government, and does not obviate the importance of considering how a judicial nominee’s religious views might shape the way she carries out her duties. Walking that line in today’s fraught political environment is tricky, however, particularly given that religion is increasingly seen as a partisan issue.

“Judges don’t come to the bench as blank slates – we’re all human beings,” says Richard Garnett, a professor of law and political science at Notre Dame University in Indiana, where he directs the Program on Church, State & Society.

“I think it’s appropriate to ask about beliefs and views generally, so you could include religious beliefs among those, so long as they are not singled out for particular suspicion,” says Professor Garnett, who has known Judge Barrett since she and his wife were clerks together on the Supreme Court.