Religious Discrimination

The Volokh Conspiracy is talking about the conservative backlash against judicial filibusters by posting excerpts of this piece from Cathy Young:

Of course, the issue isn't simply "faith," but a nominee's views on public policy issues. A pro-abortion-rights litmus test for federal judges may be wrong, but it's preposterous to claim, as some conservatives have, that it amounts to a religious test that disqualifies "serious" Catholics and evangelical Protestants from public office. Surely, it would apply just as much to atheists or agnostics who oppose abortion on secular grounds.

Its funny because, being a good little federal peon, I just completed an Equal Employment Opportunity class. So let me quote some legislation that would apply, if these judicial nominees were applying for a non-political job in the civil service. In the Civil Service Reform Act of 1978:

All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or disabling condition, and with proper regard for their privacy and constitutional rights.

What is the standard way to ascertain whether a policy is discriminatory? The answer is adverse impact. Essentially if a policy drops the selection rate of one group below 80% of the most often selected group, then that policy is de-facto discriminatory. So yes they are discriminating, because approximately 0% of Catholics or Evangelicals are going to pass this one.

It also doesn't matter that they are saying "we'll we are selecting based on abortion not on religion" if there is a high level of correlation between them. Abortion not Religion is the exact same logic that says "hey were aren't discriminating against hispanics, we are doing objective selection based on English language skills." The latter doesn't fly, why should the former?

Now you can do the talk around and say "well that policy is important and job related". Really? Think about it. You aren't testing how that person does their job in 99% of cases. Nor are you using any selection criteria based on their method of interpreting the law in general. You aren't testing their previous conduct or judicial record. You are discriminating against people based solely on fairly narrow ideological grounds and it is having an adverse impact on a significant minority of applicants. It is bullshit.