WASHINGTON -- One positive byproduct of the conservative crackup over President Bush's nomination of Harriet Miers should be the retirement of what was always a silly argument -- that asking Supreme Court nominees about whether their religious beliefs might affect their rulings amounts to an unconstitutional "religious test for office."

		Michael McGough is an editor at large in the PG's National Bureau (mmcgough@ nationalpress.com).

As more than one conservative has ruefully admitted, supporters of the Miers nomination in focusing on Ms. Miers' membership in a pro-life evangelical church are doing exactly what conservatives accused liberal Democrats of doing when questioning past Bush nominees -- making an issue of a nominee's faith.

The "religious test" argument surfaced during the confirmation hearings for former Alabama Attorney General William Pryor, a Catholic who once denounced Roe v. Wade as a constitutional "abomination." Because Senate Democrats wondered whether Mr. Pryor's "personal beliefs" would affect his interpretation of the law, defenders portrayed Mr. Pryor as a martyr for his faith.

The convoluted argument went this way: Because Attorney General Pryor's personal beliefs about abortion were rooted in his Catholicism, senators who opposed his confirmation because of his views about Roe v. Wade were engaging in anti-Catholic bigotry. In 2003, when the Judiciary Committee first sent Mr. Pryor's nomination to the floor, a pro-Pryor group aired ads showing a locked courthouse with a sign "No Catholics Need Apply."

Mr. Pryor was eventually confirmed for a federal appeals court, but not before some of his proponents suggested that opposing him because of his religious-based views on abortion was not just unfair but a violation of Article VI, Clause 3 of the Constitution, which says that "no religious test shall ever be required as a qualification to any office or public trust under the United States."

The "religious test" argument was dusted off for the confirmation hearings of John G. Roberts Jr., also a Catholic, but it proved to be the dogma that didn't bark. Roberts told the Judiciary Committee that "nothing in my personal views derived from my faith or anything else would prevent me from applying the precedents of the court" and senators moved on to other topics.

The "religious test" argument is unlikely to get a third go-round in the Miers confirmation.

Pro-Miers Republicans who had accused Democrats of an impermissible inquiry into the religious beliefs of Judge Pryor and Chief Justice Roberts are now in the embarrassing position of supporting a nominee whose friends are flaunting her religion in order to reassure Mr. Bush's "pro-life" base.

Democrats, for their part, are unlikely to flog the issue if Ms. Miers' religious beliefs because she is thought to be less problematic from their perspective than some other potential replacements for Justice Sandra Day O'Connor. And even if some Democrats want to play the "faith" card, all they need do is ask Ms. Miers if she will subscribe to the same promise John Roberts made: that nothing in her religious beliefs would make it impossible for her to uphold a Supreme Court precedent. (Prediction: Ms. Miers will do so.)

The "religious test" argument was a stretch even before Republicans switched sides on the issue of whether a nominee's religion is relevant. But before bidding goodbye to the argument, it's worth noting that the argument would flunk the test of history and logic even if a senator chose to vote against a nominee because he was a Catholic (or an evangelical or a Scientologist).

As Professor Akhil Reed Amar of Yale Law School notes in his new book, "America's Constitution: A Biography," the Constitution's ban on a "religious test" for public office was a reaction to both British and Colonial practice. For example, under the Act of Settlement, all English monarchs had to receive Holy Communion in the Church of England. Under the Constitution, no such statute could be passed to limit the presidency -- or federal judgeships -- to adherents of a particular faith.

But would a senator who was voting on a nominee to the Supreme Court be violating the Constitution by taking the nominee's religion into account? In spirit, perhaps, but the same could be said about a citizen who votes for or against a presidential candidate because of the candidate's religion.

Were Catholic voters who backed John F. Kennedy because of his faith in 1960 violating Article VI? I don't think so. Nor is a senator who decides to support Harriet Miers because he thinks evangelical Christians deserve a place at the judicial table.

The really insurmountable "religious test" imposed in the American political system is probably the unwillingness of many voters to support an atheist for public office. A 2000 Reuters-Zogby poll reported that when voters were presented with a hypothetical list of Jewish, black, female, Arab-American, gay or atheist vice presidential candidates, they were least likely to support the atheist.

When the atheist Michael A. Newdow was arguing in the Supreme Court last year against the words "under God" in the Pledge of Allegiance, Chief Justice William H. Rehnquist asked him how that phrase could be divisive when it was added to the pledge by a unanimous vote of Congress. Mr. Newdow replied: "That's only because no atheist can get elected to public office."