A DISCUSSION OF LAW AND JOURNALISM

In God We Trust…and Hold Office

hand-and-bible

By Asher Hawkins

A casual aside in Wednesday’s op-ed column by Gail Collins of The New York Times sent us here at LASIS scurrying for our constitutional-law thinking caps.

In the piece, which poked fun at Tuesday night’s feisty Republican debate in Las Vegas, Ms. Collins made the following assertion about Texas governor Rick Perry: “The whole First Amendment thing might be a little complicated for a governor whose State Constitution prohibits anyone who doesn’t believe in God from holding public office. This is not a joke.”

Not a joke? It must be. Surely some form of federal law must prevent a state from including such a blatantly pro-religion requirement in its constitution, right? Just to be safe, we decided to look into what Ms. Collins was possibly referring to.

Lo and behold, her statement is essentially accurate (if somewhat imperfectly worded): Section 4 of Article I of the Texas Constitution forbids excluding anyone “from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.” (Article I of the Texas Constitution comprises the Lone Star State’s Bill of Rights.)

How does such a requirement not violate numerous provisions of the U.S. Constitution? And is Texas the only state whose constitution contains such language, or are there corresponding clauses in other states’ foundational documents? A look at federal case law on so-called religious test oaths helps answer those questions.  

Article VI, clause 3 of the U.S. Constitution governs the oaths American politicians must take upon entering office. While the first part of that provision instructs both federal and state-level officials to swear to uphold the U.S. Constitution, the second part of the clause, which includes a prohibition on requiring religious oaths, applies only to federal officials. In other words, nothing in the U.S. Constitution, as it was originally written, stopped states from requiring religious test oaths.

In 1940 in Cantwell v. Connecticut and then in 1947 in Everson v. Board of Education of the Township of Ewing, the U.S. Supreme Court held that the first amendment’s religion-related protections were “incorporated against the states” — legalese for “applied to state-made law” — via the due process clause of the fourteenth amendment (which itself didn’t come along until the aftermath of the Civil War.)

Jump to the late 1950s. Roy Torcaso, at the time a bookkeeper for a Maryland construction company, decided to become a notary public. There was one small problem: Mr. Torcaso happened to be an avowed atheist, and Article 37 of the Constitution of Maryland’s Declaration of Rights stated that “no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God.”

Mr. Torcaso’s refusal to make such a declaration sparked a legal challenge that ultimately reached the U.S. Supreme Court. In 1961, the justices unanimously ruled in favor of Mr. Torcaso’s argument that the Maryland provision’s religious oath requirement unconstitutionally infringed his first-via-fourteenth amendment rights.

It wasn’t long before a Buddhist convicted of murder in a Maryland state court challenged his conviction on the ground that the process by which the jurors in his case had been selected violated the first-via-fourteenth amendment because Article 36 of Maryland’s Declaration of Rights required that jurors in that state profess belief in the existence of God. In 1965, the Maryland Court of Appeals (the state’s high court), citing Torcaso, agreed with the convict’s argument and ordered a re-trial. (The Buddhist defendant, who had been charged with killing his wife, was re-tried and re-convicted.)

These obstacles notwithstanding, it appears that the religious oath requirements of Articles 36 and 37 apparently were never taken out of Maryland’s constitution. What gives? In 1967, Maryland’s intermediate appellate court ruled that language in the state’s constitution that had been deemed in violation of the U.S. Constitution could stay right where it was, provided it was understood that that language had “been rendered null and void.”

The Texas constitution’s religious oath requirement likewise remained intact following Torcaso, but came under attack in a late-1970s/early-1980s legal challenge led by notorious atheist activist Madalyn Murray O’Hair (whose complicated life and violent death could perhaps only be done justice by a Milos Forman biopic.) A federal trial court in western Texas dismissed the O’Hair action on lack-of-standing grounds, and in 1981, a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit affirmed.

The O’Hair case was then granted a re-hearing before all the judges on the Fifth Circuit. In 1982, the court concluded that O’Hair and her fellow activists did, in fact, have standing to challenge Art. I, § 4 of the Texas Constitution. In sending O’Hair’s case back to the trial court without ruling on the constitutionality of Texas’ religious oath requirement, the Fifth Circuit majority stressed that the case was “difficult to distinguish from Torcaso.”

Presumably, Texas and other states whose constitutions still contain religious oath requirements (that list includes Arkansas and both of the Carolinas) leave such language intact pursuant to the same logic employed post-Torcaso by the Maryland appeals court.

Practically speaking, such legal technicalities are irrelevant: If you’re running for office in a Bible Belt state, and are the sort of person who might feel compelled to publicly disclaim the existence of some form of Supreme Being, you should probably be more concerned with making it through the primary in one piece than with the semantics of the oath you’ll never get the chance to take. For would-be politicians in certain parts of this country, no matter what the law says, you gotta “believe.”

Comments

3 Comments »

3 Responses

  1. Stash says:

    Just read the bio for this author who seems to be half journalist, half student. It shows, the journalist part. Well written piece.

  2. D G says:

    If you don’t take the Texas Constitution phrase out of context:

    Sec. 4. RELIGIOUS TESTS. No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.

    There appears to be no possibility of controversy. The first clause prohibits a religious test. How can the supporting clause be interpreted to require one?

    Why wouldn’t it be interpreted to require a person making an oath invoking religious sentiments to actually believe in (a) god? The idea being that to do otherwise would be forsworn.

  3. Hi DG,
    Thanks for reading and for submitting such an insightful comment!
    I think that the textual argument you raise is a compelling one, and I could definitely see a lawyer for the State of Texas using it in a court fight over the provision in question.
    If you’ll indulge me a few lines of counterargument, I’ll play counsel for the hypothetical avowed atheist who’s challenging the Texas provision:

    First of all, you seem to assume that the Texas constitution’s provision can only be challenged as being in violation of Article VI, clause 3 of the U.S. Constitution, which contains the prohibition on requiring religious oaths. But recall that that provision of the federal constitution only applies to federal officials. As a result, the Texas provision is properly challenged as violating the U.S. Constitution’s First Amendment (as applied to state-made law via the Fourteenth Amendment.) And, under a First Amendment analysis, the important question is not whether the Texas provision requires a religious oath, but rather whether it prevents an atheist from holding public office as a result of his religious beliefs (or lack thereof, to be more accurate.)
    The Texas provision arguably violates both the Establishment of Religion and Free Exercise clauses of the First Amendment.
    Note that the Establishment Clause appears to refer to religion in general, and not just one religion. Hence Justice Black’s famous statement from Everson v. Board of Ed. that the Establishment Clause “means at least this: neither a state nor the Federal Government can … pass laws which … aid all religions…” If a requirement that a state’s public officials believe in a “Supreme Being” does not aid all religions in general, I’m not sure what would.
    The First Amendment’s second religion-related clause prevents laws that prohibit the “free exercise” of religion. If the Free Exercise Clause protects an American’s right to a revere a god or set of gods in the manner he or she chooses, then the First Amendment also protects his or her right to “embrace … none at all,” as Justice Stevens wrote in 1985 in Wallace v. Jaffree.

    Before signing off, I’ll call attention to the fact that the Texas provision we’ve been discussing is actually one of the — for lack of a better word — softer religion-requirement provisions found in the various state constitutions that still include such language.
    Check out Article 19, Section 1 of Arkansas’ constitution:

    Atheists disqualified from holding office or testifying as witness —
    No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any Court.

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