TEACH TO THE TEST (via Tom Morin):

Religious Tests & Civil Society (Barry Hankins, 02/26/2004, Liberty)

The prohibition against religious tests for office could not be clearer. It appears in Article VI of the United States Constitution and reads, “no religious test shall ever be required as a qualification to any office or public trust under the United States.” This is the only mention of religion in the main body of the Constitution. The prohibition of religious tests was quite a step for the founders. Test oaths were common during the Colonial and early national periods of American history. In 1778 a Puritan minister summed up what seemed to be the prevailing consensus when he said that oaths induce “the fear and reverence of God and the terrors of eternity.” He went on to say they impose “the most powerful restraints upon the minds of men.” Indeed, a prohibition against religious tests for officeholders was unprecedented in Western civilization. All but two of the original 13 states had religious tests for office. Some of the oaths were quite broad, requiring only a belief in God or in Christianity, while Delaware’s, for example, was more specific, requiring belief in the Trinity. Dissenters from the Quakers, Baptists, Moravians, Jews, and some other groups condemned the oaths as a violation of liberty of conscience.3

Article VI of the U.S. Constitution does not apply to states, however, so the oaths remained in place in many states for a long time. Even today some state constitutions retain test oaths. The Massachusetts state constitution, for example, has an oath that reads, “I _________ do declare that I believe the Christian religion, and have a firm persuasion of its truth.” A later amendment replaces that oath with a general oath swearing allegiance to the commonwealth of Massachusetts “so help me God.” The amendment then provides that Quakers, because of their prohibition against swearing oaths, can replace the word “swear” with “affirm” and omit the words “so help me God.” The Texas constitution contains this puzzling oath: “No religious test shall ever be required as a qualification to any office . . . ; nor shall any one be excluded from holding office on account of his religious sentiments provided he acknowledge the existence of a Supreme Being.” As one can see, the same sentence proscribes religious oaths, then requires officeholders to hold a belief in a Supreme Being. In the 1980s the notorious atheist Madalyn Murray O’Hair attempted to challenge the Texas test oath, only to be rebuffed by the courts because she lacked standing to sue. The oath had never been applied to her, and she was not even running for office. These and other state religious tests for office are unenforced and unenforceable because of two U.S. Supreme Court cases, one in 1961 and another in 1978.

The first of these was Torcaso v. Watkins (1961). Torcaso was appointed notary public but was denied his commission because he would not affirm belief in God as was required by the Maryland state constitution. He challenged Maryland’s test oath on First and Fourteenth Amendment grounds. The Fourteenth Amendment forbids states from denying individuals liberty without due process of law. Through the doctrine known as incorporation the Supreme Court has used the liberty component of the due process clause to make most of the rights in the Bill of Rights applicable to the states. The reasoning is that to deny a person his or her right to free exercise of religion, free speech, or other fundamental rights is to deny that person’s liberty. The First Amendment’s free exercise clause was first applied to the states in Cantwell v. Connecticut (1940); then the establishment clause was incorporated in Everson v. Board of Education (1947). In Torcaso, rather than consider whether Article VI of the U.S. Constitution applied to state officers, a unanimous court used the First Amendment’s free exercise clause, made applicable to the states via the Fourteenth Amendment, to strike down Maryland’s religious test oath and by implication those in other states as well. Justice Hugo Black wrote for the majority, “This Maryland religious test for public office unconstitutionally invades the appellant’s freedom of belief and religion and therefore cannot be enforced against him.”4

The second case involving a religious test for office was McDaniel v. Paty (1978). By 1976 Tennessee was the only state that still banned ministers from serving in the state legislature, a practice that had existed in various places since the days of Puritan Massachusetts in the seventeenth century. Tennessee’s prohibition was extended to candidates for the state constitutional convention, which was scheduled to meet in 1977. When Baptist minister Paul McDaniel attempted to run for a position on the state constitutional convention, a challenger, Selma Cash Paty, sued to keep Pastor McDaniel off the ballot. The U.S. Supreme Court, with one member not participating, ruled unanimously that the Tennessee provision was unconstitutional.

Although the Supreme Court has invalidated state religious tests for office, some scholars believe that Article VI of the U.S. Constitution was merely a federalist jurisdictional maneuver intended only to leave the issue of religious test oaths to the states. Evidence for this position is that many of the same individuals who supported Article VI also supported the continuation of religious tests at the state level. As the Supreme Court noted 15 years before the Torcaso case, however: “The test oath is abhorrent to our tradition,” and this is the view that has prevailed at all levels.6 The consensus on the unconstitutionality of test oaths apparently led Committee for Justice leaders to believe they had a strong charge against Democrats. The CFJ believed that if it could show that Democrats were using a religious test against William Pryor, public opinion would turn, and Pryor’s nomination might succeed. Moreover, if successful in convincing people that Democrats were anti-Catholic, the CFJ could drive a wedge between Catholics and the Democratic Party. This explains why the ads were placed in heavily Catholic states. [...]

The most significant irony of all this is that Republicans tout original intent, by which standard there is no religious test taking place, yet they say there is. Many Democrats, by contrast, espouse the organic view, or the living spirit of the Constitution, by which standard there is a religious test occurring, but they say there isn’t. Both sides would do well to acknowledge that their opponents have something important to say. Republicans want Democrats to know that people cannot be required to compartmentalize themselves so that their religious values never instruct their political positions. It is unjust to insist that believers act as if their faith does not matter in public affairs, because to do so is to insist that people of all faiths adhere to the view that religion is merely a private matter, which is a view held by only some religious people. Democrats, on the other hand, believe Republicans should acknowledge that if candidates for various government positions form their political views on the basis of their religious values, others should feel free to oppose those political views without fear of being labeled anti-religious; otherwise people of faith would have a privileged position.

Where's the irony? If you oppose someone because of their Catholic morality you are anti-Catholic. No religious person would be troubled by saying that they oppose an atheist taking the bench and are therefore anti-amoralist, would they?

America's real religious test is the one often credited, though probably wrongly, to Presiudent Eisenhower: "A system of government like ours makes no sense unless founded on a firm faith in religion, and I don't care which it is." The variant of Judaism/Christianity you adhere to matters less than that you do.

Posted by Orrin Judd at May 4, 2004 10:11 AM