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Presidential Nominating Conventions and the Establishment Clause-- An Analysis

By Howard M. Friedman

As the Democratic Party at its National Convention this week reaches out to religious voters, the question arises as to whether the Establishment Clause places any limits on religious activity at Presidential nominating conventions. (See Don Byrd's recent posting at Blog from the Capital.) The courts have not faced this precise issue, but a series of Supreme Court cases have focused on related concerns. At the heart of the issue is whether political parties are, at their conventions, engaged in governmental action covered by the Constitution, or whether instead they are acting as private associations which protected by the Constitution.

Early on in Smith v. Allwright (1944) and Terry v. Adams (1953), the Supreme Court struck down party primaries or pre-primaries that precluded Blacks from voting, finding that they violated the 15th Amendment's ban on states infringing the right to vote on the basis of race. However, more recently when states began to impose various sorts of limitations on party primaries, the Supreme Court has held that the associational rights of political parties are protected by the First Amendment. The court's discussion in the 2000 case of California Democratic Party v. Jones is particularly instructive. The Court struck down California's requirement that every primary voter receive a ballot listing candidates from all political parties. Justice Scalia, writing for the majority, said:

[W]e have not held ... that the processes by which political parties select their nominees are, as respondents would have it, wholly public affairs that States may regulate freely. To the contrary, we have continually stressed that when States regulate parties' internal processes they must act within limits imposed by the Constitution.... [R]espondents' reliance on Smith v. Allwright ... and Terry v. Adams ... is misplaced.... These cases held only that, when a State prescribes an election process that gives a special role to political parties, it "endorses, adopts and enforces the discrimination against Negroes" that the parties ... bring into the process--so that the parties' discriminatory action becomes state action under the Fifteenth Amendment....They do not stand for the proposition that party affairs are public affairs, free of First Amendment protections....

Justice Stevens dissent (joined by Justice Ginsburg) distinguished state primaries from the action of political parties. However as to political parties, Stevens wrote:

A political party could, if a majority of its members chose to do so, adopt a platform advocating white supremacy and opposing the election of any non-Caucasians. Indeed, it could decide to use its funds and oratorical skills to support only those candidates who were loyal to its racist views. Moreover, if a State permitted its political parties to select their candidates through conventions or caucuses, a racist party would also be free to select only candidates who would adhere to the party line.

Does this make it clear that the Establishment Clause is inapplicable to national party conventions? Can parties impose religious tests on who may be a delegate? Would imposing a religious test on who may be the party nominee violate Article VI of the U.S. Constitution that prohibits any religious test for any office under the United States?

Full post as published by Religion Clause on August 26, 2008 (boomark / email).