Do you consider yourself an orthodox Catholic?”

That is the question Sen. Dick Durbin asked judicial nominee and Notre Dame law professor Amy Coney Barrett last week at her Senate confirmation hearing.

One thing is certain, if she doesn’t get the job, she has a good case of discrimination, at least according to the U.S. Equal Employment Opportunity Commission.

Durbin was not alone in his inappropriate questioning. Sen. Diane Feinstein asked, “When you read your speeches, the conclusion one draws is that the [Catholic church] dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”

Sen. Dianne Feinstein, D-Calif.
Sen. Dianne Feinstein, D-Calif.

In other words, professor Barrett, will you denounce your religion’s position against abortion?

U.S. Supreme Court Justice Anthony Kennedy, who is Catholic, would likely take exception to such questioning. Despite his religious affiliation, Kennedy wrote the 5-4 majority opinion in Obergefell v. Hodges, which held that same-sex marriage bans violate the Constitution. In fact, Chief Justice John Roberts, Justice Clarence Thomas, Justice Samuel Alito and Justice Sonya Sotomayor are also Catholic. Despite having five Catholics on the court, Roe v. Wade remains law.

That’s why it’s wrong to question a prospective judge about how orthodox she happens to be. The correct question is, will you apply the law as written, according to precedent, regardless of religious conviction?

Feinstein contends she did not apply a test oath, “I have never and will never apply a religious litmus test to nominees.” Then why did she ask the question?

Unfortunately, this episode is not the first time in which test oaths have been used in American history. Members of The Church of Jesus Christ of Latter-day Saints, or Mormons, hold the distinction for most egregious application of a test oath.

In 1890 the Supreme Court, in Davis v. Beason, upheld a test oath statute from the territory of Idaho that prohibited a person from voting or holding public office unless he took an oath that he did not affiliate with any organization that taught or encouraged the practice of bigamy, polygamy or “what is known as plural or celestial marriage.” The court compared the Mormon doctrine of celestial marriage to rites of human sacrifice.

While the court’s decision to uphold the part of the statute that denied rights to anyone practicing polygamy was correct, as polygamy was against the law, the court committed a grievous error when it affirmed the part of the statute that denied societal rights to those who were simply members of a church. Mormons at the time practiced plural marriage as a religious rite. Though few actually entered into the rite, faithful Mormons supported the doctrine underlying the practice. Simply, the Mormon test oath had the effect of disqualifying all Mormons, bigamist or not, who would not disavow their beliefs.

While not stating so directly on the face of the test-oath statute, it was codified to keep practicing Mormons from voting or holding public office in the Idaho territory, and to quell the rapidly growing population of Mormons in southern Idaho that threatened to shift the political balance of the territory as a whole. It was similar to the political considerations that led Missouri Gov. Boggs to issue his Extermination Order of 1838, which directed that “Mormons must be treated as enemies, and must be exterminated or driven from the state if necessary for the public peace.”

| Courtesy A copy of the Mormon
| Courtesy A copy of the Mormon "extermination order" issued by Missouri Governor Lilburn W. Boggs in 1838.

Today, Davis v. Beason is considered a black-eye among constitutional law scholars – a particularly low point for the court in its freedom of religion jurisprudence.

It wasn’t until 1976 that Missouri rescinded the Extermination Order. In 1982, the state of Idaho expunged the Mormon test oath from its state constitution by referendum. Thirty-three percent of Idahoans voted in favor of keeping the test oath in the Idaho constitution. In 1993, the Supreme Court was still citing Davis v. Beason as binding precedent. It wasn’t until 1996 that the Court overruled Davis to the extent it would permit legal prejudice against church members.

While Catholics today are not members of a minority, persecuted religion, like early-era Mormons or even Catholics 100 years ago, religious test oaths are unAmerican.

I wish, during Barrett’s confirmation hearing, some brave senator would have ardently asked, as did lawyer Joseph Welch when Sen. Joe McCarthy accused his partner, a lawyer who had belonged to the National Lawyers Guild in law school, of being a communist sympathizer:

“Have you no sense of decency, sir, at long last? Have you left no sense of decency?”

Michelle Quist Mumford is an editorial writer for the Salt Lake Tribune who hopes if, by some miracle, she ever finds herself answering questions about her religion in a Senate committee hearing she can think of a witty response to such inappropriate questioning.