THE BLOG
07/14/2014 11:56 am ET Updated Sep 13, 2014

Religious Tests for Public Office and the Constitution

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A recent Washington Post article reported that the state constitutions of eight states -- Arkansas, Maryland, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee, and Texas -- expressly prohibit individuals who do not believe in God from holding public office.

The Arkansas constitution, for example, provides that "no person who denies the being of a God shall hold any office in... this State," the Mississippi constitution stipulates that "no person who denies the existence of a Supreme Being shall hold any office in this State," the Tennessee constitution states that "no person who denies the being of God, or a future state of rewards and punishment, shall hold any office in... this state," and so on.

Are such provisions constitutional? The history of such laws goes back to the very founding of our nation, for a central question facing the Framers of our Constitution concerned the appropriate role of religion in government. For more than a thousand years, it had been the norm for Christian societies to have an established religion. At the time of the American Revolution, nine of the 13 colonies still had an established church, and most colonies expressly limited the right to hold public office to members of their established church. Over the next decade, though, Americans increasingly questioned the appropriate role of religion in the affairs of government.

A critical debate occurred in Virginia, where a lengthy struggle culminated in the adoption in 1785 of Thomas Jefferson's Statute for Religious Freedom. The preamble of Jefferson's bill condemned those "legislators and rulers" who have "assumed dominion over the faith of others, setting up their own opinions and modes of thinking as... true and infallible," and then "endeavored to impose them on others."

The men who gathered a few years later in Philadelphia to draft a new constitution for the United States were acutely aware of this debate, of the dramatic growth in religious diversity in America over the course of the eighteenth century, and of the lessons of history. They viewed religion not as a unifying force, but as a potentially divisive factor that threatened to undermine their goal of forming a "more perfect union." As James Madison, the chief architect of the Constitution, observed, "a zeal for different opinions concerning religion" has throughout history "inflamed [men] with mutual animosity, and rendered them much more disposed to vex and oppress each other, than to co-operate for their common good."

Against that background, not only did the Framers refuse to adopt an established national religion, but they affirmatively prohibited the government to enact "any law respecting an establishment of religion" and expressly provided that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

The Framers' approach to religion triggered a sharp response from some quarters during the ratification debates. Major Thomas Lusk of Massachusetts, for example, shuddered "at the idea that Roman Catholics, Papists, and Pagans might be introduced into office." A delegate to the North Carolina ratifying convention cautioned that under the Constitution as drafted, even "Papists... and Mahometans" could become President of the United States. A detractor in New Hampshire insisted that no man "is fit to be a ruler of protestants" who does not "honestly profess to be of the protestant religion." Despite these objections, the proponents of the "no religious test" clause carried the day, and in the Federalist Papers James Madison celebrated this provision as one of the "glories of the new Constitution."

Nonetheless, religious test clauses remained in effect in many state constitutions. It was not until 1961 that the Supreme Court finally addressed the constitutionality of such laws. In Torcaso v. Watkins, the governor of Maryland appointed Roy Torcaso to the office of Notary Public, but Torcaso was denied a commission because he would not declare his belief in God, as required by the Maryland constitution. The Supreme Court, in an opinion by Justice Hugo Black, unanimously held the Maryland provision unconstitutional.

Invoking the Establishment Clause of the First Amendment, Justice Black explained:

"Neither a state nor the Federal Government... can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person... to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs ... In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.'" The Court therefore held that the "Maryland religious test for public office unconstitutionally invades [Torcaso's] freedom of belief and religion, and therefore cannot be enforced against him."

Since the Court's unanimous decision in Toracso, it has been accepted wisdom that governments in the United States cannot constitutionally deny individuals the right to hold public office because they do not believe in God. That eight states still have such provisions in their constitutions, even if they are unenforced, is offensive and inappropriate. But perhaps these eight states believe that Torcaso was wrongly decided? What happens then?

Suppose a person appointed or elected to public office in one of these states refuses to declare that she believes in the existence of a Supreme Being. She declares herself an atheist or an agnostic. Suppose the state then refuses to permit her to take office. Presumably, she would then sue and, citing the Supreme Court's decision in Torcaso, assert that the state's constitutional provision violates the United States Constitution. Lower state and federal courts, following Torcaso, would have no choice but to accept her claim and declare the provision invalid. It is, after all, their duty to follow Supreme Court precedent.

But now suppose the case reaches the Supreme Court. What result can we expect? For at least two reasons, the case should be easy. First, under the doctrine of precedent, the current justices would presumably follow the precedent set in Torcaso. Second, even if Torcaso had never been decided, the correct outcome seems clear: as the Court unanimously held in Torcaso, the Establishment Clause forbids religious tests for holding public office.

Sadly, given the inclinations of the five conservative justices on the Court today (Roberts, Scalia, Kennedy Thomas, and Alito), neither conclusion is certain. With respect to the doctrine of precedent, the five conservative justices have repeatedly overruled prior decisions with which they disagree. In Citizens United, for example, which dealt with campaign finance regulation, these five justices overruled a seven-year-old precedent. In District of Columbia v. Heller, which dealt with gun control and the meaning of the Second Amendment, these five justices overruled a 70-year-old precedent. In Gonzales v. Carhart, which dealt with abortion, these five justices overruled a seven-year-old precedent. Thus, if it turns out that these five justices disagree with Torcaso, there is little reason to believe that they will respect the doctrine of precedent.

But why would they disagree with Torcaso? After all, the reasoning of that unanimous decision seems clearly correct. But the five conservative justices on the Court today clearly do not share the general constitutional understandings of the Court of 1961. This is so across a range of issues, but perhaps most conspicuously in the realm of religion. Indeed, the Court's five conservative justices have consistently taken positions that come out quite aggressively in support of the interests of religion.

Just this year, for example, these five justices held that for-profit corporations have a right to religious freedom and that a town council can constitutionally begin its sessions with persistently Christian prayers. Moreover, several years ago, three of these justices went so far as to suggest that an eight-foot-tall cross erected on federal land to honor American soldiers was not an affirmation of Christian beliefs, but a generic symbol designed to honor those who died for their country.

It is, one would hope, highly unlikely that the religious test issue will ever again come before the Supreme Court. But if it does, who knows what these five justices will do? In light of the inclinations of these five justices, an issue once thought satisfactorily and definitively resolved might once again re-emerge -- to the great detriment of the nation.

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