A new article by Tax Prof Johnny Rex Buckles (Houston), Unashamed of the Gospel of Jesus Christ: On Public Policy and Public Service by Evangelicals, 41 Harv. J.L. & Pub. Pol'y 813 (2018):
Congressional committee hearings considering nominees for federal office have increasingly featured extensive scrutiny of, and even hostility toward, nominees who are more than nominally religious. Congressional interrogations of the religiously orthodox raise important questions of law, public policy, and religion in our constitutional democracy. The exchange between Senator Bernie Sanders and Russell Vought, then-nominee for Deputy Director of the White House Office of Management and Budget and an evangelical Christian, is especially instructive. Focusing on this exchange as a springboard for discussion, this Article analyzes the constitutional and policy implications of congressional probing into the religious faiths of nominees. The issues raised by the Sanders-Vought exchange are recurring, and they potentially affect not just evangelical nominees, but also historically orthodox believers, in general.
Part I of this Article evaluates the constitutionality of discharging one’s legislative office as Senator Sanders did. Did he violate Article VI, which prohibits government from conditioning federal public service on formal adherence to a religious view? Did he contravene the Free Exercise Clause of the First Amendment, which protects citizens from religiously based targeting by government actors? Did he transgress the Establishment Clause, which prevents government from favoring one religious perspective over another? This part concludes that lawmakers who inquire in the manner of Sanders do not violate constitutional rights, at least not in a manner that is remediable, but that they do plainly offend constitutional norms.
Having established the practical constitutional permissibility—but normative constitutional impropriety—of the Sanders interrogation, this Article argues in Part II that Sanders’s opposition to Vought is unjustified under a sensible public policy analysis. Opening a dialogue that is sorely needed in contemporary public policy discourse, this section explores in some detail the evangelical claims that Sanders apparently found so objectionable, and how they do and do not bear upon one’s capacity for public service. After examining the essential meaning of evangelicalism, this part considers three potential objections to public service by evangelicals. These three objections, which are suggested in Senator Sanders’s interrogation of Mr. Vought, are the following: (1) evangelical soteriology is mutually exclusive with other faiths, including Islam; (2) evangelical soteriology reflects intolerance of people of other faiths; and (3) evangelical soteriology assumes a view of sin that is offensive. This part concludes that these objections are either untrue or irrelevant (depending on the objection), and that evangelicals are perfectly capable of serving the country nobly while holding firmly to their faith.