Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

I support the efforts of the Americans United for Separation of Church and State, the Freedom From Religion Foundation, the National Lawyers Guild, the ACLU, Creative Commons, and the Electronic Frontier Foundation. I am a member of the New York County Lawyers Association and the New York State Bar Association. I also enjoy (watching) hockey and (doing) photograhy.

Online I can be found on Facebook, Twitter. My resume can be viewed here. I can be reached by phone at 212.645.6241 or by e-mail at pilutik[at]

Religious Testing One Two Three

Among the very bright things our framers agreed to impose on their new federal government was the lesser known religious clause, prohibiting any religious test for public office. Tucked away toward the back of the Constitution, the clause prohibits the government from imposing a religious prerequisite for elected office. Obviously the Constitution can’t prohibit voters from using whatever criteria it likes when choosing a candidate, so religion has and probably always will be a factor in electoral politics.

But the ‘no religious test’ clause also exists as a cautionary beacon, a principle to steer toward, and a tension therefore connects the principle that we should look past religion when choosing elected officials, the law as it can reasonably be applied, and some pragmatic realities (we’re unlikely to elect cult leaders, for instance). But perhaps ‘confusion’ is a better word than “tension,” if the calculatingly pandering display by Mitt Romney last week in his “JFK Speech” is any indication.

“There are some who would have a presidential candidate describe and explain his church’s distinctive doctrines. To do so would enable the very religious test the founders prohibited in the Constitution.”

Romney assumes a broad, statesman-like reading of the Article VI clause here, which is fine, since Romney is delivering a a prepared speech on a broad subject. But seconds later …

“We should acknowledge the Creator as did the Founders in ceremony and word.”

Doesn’t this sound an awful lot like a religious test? By Romney’s immediately preceding usage it is, anyway. Romney is subscribing to Justice Scalia’s monotheistic preferentialism and Romney’s version is just as revolting. Unlike Scalia, Romney is an outsider looking in; perhaps he’s hoping to lead his Mormon faith–highly suspect amongst Evangelicals–down the same road Catholicism meandered until it eventually found common enough cause with the Protestant majority, deempahasizing theological distinctions along the way.

I personally don’t think the United States is prepared to elect a Mormon president, as the theological gap is much wider between it and Protestant Christianity than is or was between Catholicism and Protestantism. Transubstantiation? Try comparing Nephi to Matthew, or coming to grips with temple undergarments and multiple celestial kingdoms, not to mention the spiritual (i.e., “plural”) wifery that lingers in the Mormon sub-sect strata. JFK, in his 1960 speech that Romney was attempting to emulate (directly alluding to it even), had a much easier bridge to gap than does Romney.

And so Romney precariously goes forth, asking us not to judge him by his Mormon beliefs but to please judge him on the common monotheistic ground he shares with Christians, Jews, and Muslims, all while standing opposed to religious tests. As many have pointed out, this is an unsustainable argument:

Mitt thinks religious beliefs are a fair thing to judge political candidates by. And he’s being judged. I don’t particularly have an opinion about whether Mormonism is cult-like or whether Jesus Christ would endorse the Mittster, but Mitt certainly has an opinion about my fitness for higher office. [Atrios]

It is a little like a 1960s black civil rights leader arguing for racial tolerance by emphasizing how light skinned he was. [Jack Balkin]

But it seems odd to say that challenging Romney because of his Mormon faith — for instance, “How can you believe such odd-seeming factual assertions about reality and history?,” or “Your religion barred blacks from full-fledged membership until 1978, when you were 30; what was your view at the time about the morality of this prohibition?” — is somehow categorically improper, but rejecting atheist or agnostic political leaders because of their lack of religious faith would be permissible. [Eugene Volokh]

Romney isn’t the only candidate in this election asking people to vote their religious convictions, but he’s easily the most disingenuous. This speech showed Romney on the playground, desperately currying favor with the cool kids by picking on the marginalized weaklings. Mitt Romney can’t go away soon enough.

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