[I sent this last night but it doesn't seem to have reached the list so I'm trying again, slightly edited.]
The courts have told us that a statute that coincides with a religious belief, and that may have been enacted by legislators whose votes were influenced by their personal religious beliefs, is not thereby an establishment of religion. E.g., Harris v. McRae (no tax funding for abortions). Why shouldn't the same principle apply here? If a person's openly held beliefs or public statements are actually antithetical to the requirements of a particular job, then that person should not have to be hired or retained in that job. Whether the beliefs or statements at issue arise from the person's religion or from some other source should be irrelevant. If I won't defend someone's legal right to utter blasphemy, then the ACLU could reasonably refuse to hire me as a First Amendment litigator, regardless of whether my refusal to do so arises from my religious belief that blasphemy (and the defense of blasphemy) is a sin, or from my purely secular belief that the world would be a better place if people were legally prohibited from casting aspersions on other people's religious beliefs. I therefore don't see how denying a job to a person who holds beliefs that are antithetical to the requirements of the job constitutes a religious test. I think the argument that this is a religious test assumes that “no religious test shall ever be required as a qualification” includes the meaning “no secular test shall ever be required as a qualification if it would have a disparate impact on people of some religion,” which seems dubious to me. Is it a “religious test” to require that a Public Health Service nurse be willing and able to give vaccinations, which (I'm assuming for the sake of making the point) means that a Christian Scientist can't get that job? Whether a person's beliefs are actually antithetical to the requirements of a particular job depends a lot on the job. I don't care if an NIH file clerk believes that the germ theory of disease is a false invention of Satan, intended to mislead people into vainly trying to cure illness with medicine rather than with prayer -- as long as that belief doesn't cause him to misfile charts. But I think such a belief should disqualify a person from being the head of NIH, because such a belief is very likely to skew decisions that are within the power of that job. (And this remains true even though it's possible that in 200 years the germ theory will have been displaced by a more sophisticated understanding of illness. We can't live 200 years in the future.) Of course, it's the government's option whether to assert or to disregard such a disqualification. There's nothing unlawful about appointing a person who doesn't believe in germs to be the head of NIH, any more than it's unlawful to appoint a person who doesn't believe in regulating Wall Street to be the head of the SEC, or unlawful to appoint a person who believes that “when the President does it, it's not against the law” to be the Attorney General. Art Spitzer (speaking personally; I don't think the ACLU has expressed any view about the appointment of Dr. Collins)
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