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Oaths 5 – Torcaso v. Watkins

Evidence of the pervasive effect of allowing the federal government to forbid religious test oaths in the States of the Union as completely as is the case for federal government offices was the 1961 U.S. Supreme Court case, Torcaso v. Watkins, 367 U.S. 488 (1961), is touted as the opinion that settled whether the Article VI religious test clause ban applies to the States after the Fourteenth Amendment. I’ve copied the Wikipedia article on the matter because it sums up the opinion and the lack of resolution of the issue by that opinion. The opinion actually never addressed Article VI because it applied the First Amendment to decide the case.

“In the early 1960s, the Governor of Maryland appointed Roy Torcaso (November 13, 1910 – June 9, 2007) as a notary public. At the time, the Constitution of Maryland required ‘a declaration of belief in the existence of God’ in order for a person to hold ‘any office of profit or trust in this State.’

“Torcaso, an atheist, refused to make such a statement, and his appointment was consequently revoked. Torcaso, believing his constitutional rights to freedom of religious expression had been infringed, filed suit in a Maryland Circuit Court, only to be rebuffed. The Circuit Court rejected his claim, and the Maryland Court of Appeals held that the requirement in the Maryland Constitution for a declaration of belief in God as a qualification for office was self-executing and did not require any implementing legislation to be enacted by the state legislature.

“The Court of Appeals justified its decision thus:

“The petitioner is not compelled to believe or disbelieve, under threat of punishment or other compulsion. True, unless he makes the declaration of belief, he cannot hold public office in Maryland, but he is not compelled to hold office.

“Torcaso took the matter to the United States Supreme Court, where it was heard on April 24, 1961.

“The Court unanimously found that Maryland’s requirement for a person holding public office to state a belief in God violated the First and Fourteenth Amendments to the United States Constitution.

“The Court had previously established in Everson v. Board of Education (1947):

“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.

“Writing for the Court, Justice Hugo Black recalled Everson v. Board of Education, and explicitly linked Torcaso v. Watkins to its conclusions:

“There is, and can be, no dispute about the purpose or effect of the Maryland Declaration of Rights requirement before us — it sets up a religious test which was designed to and, if valid, does bar every person who refuses to declare a belief in God from holding a public ‘office of profit or trust’ in Maryland.

“… We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion.’ Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.

“Rebuffing the judgment of the Maryland Court of Appeals, Justice Black added: ‘The fact, however, that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution.’

“The Court did not base its holding on the no religious test clause of Article VI. In Footnote 1 of the opinion Justice Black wrote:

“‘Appellant also claimed that the State’s test oath requirement violates the provision of Art. VI of the Federal Constitution that ‘no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.’ Because we are reversing the judgment on other grounds, we find it unnecessary to consider appellant’s contention that this provision applies to state as well as federal offices.'”

The Wikipedia article concludes: “The question of whether the no religious test clause binds the states remains unresolved. Given the Court’s First Amendment holding, that issue is largely academic.”

“Torcaso v Watkins,” Wikipedia, https://en.wikipedia.org/wiki/Torcaso_v._Watkins, accessed on April 2, 2016.

Ironically, considering the number of religious issues intersecting civil government that seem to originate or, at least, become issues in the State of Alabama, Hugo Black, the Justice from Alabama, was the author of the majority opinion.

Therefore, the U.S. Constitutional Convention rejected religious test oaths for federal offices only and appeared to have no intention, that I can discern, to forbid religious test oaths for offices in the civil governing of the States. Yet, 174 years later and 94 years after the passage of the Fourteenth Amendment, the U.S. Supreme Court did apply the First Amendment to forbid such in the States in Torcaso. Thus, the founders’ vision of a rationalistic basis for human reason and governance, unfettered by God’s word, has descended from the child to the parents, so to speak. For the federal government was the creation of the States, and now its requirement of tolerance for all religious faiths has infected all the States of the Union.