Denial of Equal Rights to Religious Minorities and Non-Believers in The United States
B. H. HARTOGENSIS
Yale Law Journal, vol. 39, pp. 659-681 (1930)
|Article VI does not apply to the states.|
|The very definition of an "oath" is a religious act. Logically, atheists were not allowed to take oaths. A "religious test" is a requirement to be a member of a specific Christian church (denomination). After the Constitution was ratified, nearly all states excluded atheists from oath-taking, even though the state constitutions prohibited "religious tests."|
Despite the sixth article of the Constitution of the United States that no religious test shall ever be required as a qualification to any office or public trust under the United States, this has not been taken seriously by the states, even by those whose constitutions "made this Constitution and laws made or which shall be made in pursuance thereof" paramount. Thus until 1877 New Hampshire required that its state Senators and Representatives should be of the Protestant religion. Like restrictive words had been formerly used in the constitutions of Delaware, South Carolina, Massachusetts, Connecticut and Vermont. In many states the oath of office ends in the words "So Help Me God," which formula has been interpreted to require a belief in a God to whom one is answerable for his sins. The Arkansas constitution prescribes that: "No person who denies the being of a God shall hold any office in the civil departments of the state or be competent to testify as a witness in any Court." In North Carolina, "all persons who shall deny the being of Almighty God are disqualified from office." Under Pennsylvanias present constitution, "no person who acknowledges the being of a God or a future state of rewards and punishments shall on account of his religious opinions be so disqualified." It would seem that disqualification for public office follows as an inference from these words.
In Maryland until the constitution of 1851 all office-holding depended upon a declaration of a belief in the Christian religion. Jews, however, had been exempted since 1826. Its present constitution prescribes that there shall be no test "other than a declaration of belief in the existence of God." In spite of this, the Code of Public General Laws (1924) prescribes for the oath of office a declaration of belief in the Christian religion, as had been the case before the constitution of 1851. Under the earlier rule, no Jew could qualify for even the smallest office, nor practice law. In 1826, following a conflict beginning in 1797, an exemption was granted to Jews who would declare themselves such and "express belief in a future state of rewards and punishments." This exemption is continued in the present law. All others are excluded from office, non-conforming Christians, believers in so-called false religions, non-believers, and atheists. Yet Marylands "Bill of Rights" provides that no man is to be molested in his religious profession or practice unless he "disturbs the good order, peace and safety of the State or shall infringe the laws of morality or injure others in their natural civil or religious rights."
 MARYLAND CONSTITUTION (1867) Declaration of Rights, art. 2.
 NEW HAMPSHIRE CONSTITUTION (1877) pt. 2, art. 14.
 DELAWARE CONSTITUTION (1776). Every officeholder was required to subscribe to the following: "I, A.B., do profess faith in God the Father, and in Jesus Christ, his Only Son, and in the Holy Ghost, one God, blessed forevermore; and I do acknowledge the Holy Scriptures of the Old and New Testament, to be given by divine inspiration." The Constitution of 1818 changed this.
See for full citations KETTLEBOROUGH, supra note 25.
 Alabama, Connecticut, Florida, Louisiana, Maine, Massachusetts, Mississippi, New Hampshire, Rhode Island, Vermont, and Virginia. See KETTLEBOROUGH, supra note 25.
The words "So Held Me God" have for thirty years been taken out of the judicial oath in Maryland by statute and the method of administering it restricted to uplifting the hand-unless some other mode of administering the oath is "more binding on the conscience of the swearer." In practice, kissing the Bible and using "So Help Me God" is usual.
 ARKANSAS CONSTITUTION (1874) art. 19, § 1. Cf. Mueller v. Coffman, 132 Ark. 45, 200 5. W. 136 (1918). Tennessee has almost the same words except as to competency of witnesses. TENNESSEE CONSTITUTION (1919) art. 9.
 NORTH CAROLINA CONSTITUTION (1868) art. 6, § 8.
 PENNSYLVANIA CONSTITUTION (1873) §§ 1-4.
 MARYLAND CONSTITUTION (1867) Declaration of Rights, art. 37. This phrase was protested by a high churchman, Bernard Carter, in the constitutional assembly of 1867. For the history of this debate, see Davidson v. Brice, 91 Md. 681, 688, 48 Atl. 52, 53 (1900).
|This represents a genuine conflict between constitution and statute. This statute is unconstitutional under the Maryland Constitution. But many other statutes excluding non-Christians were not.|
 MD. ANN. CODE (Bagby, 1924) art. 70, § 9, apparently violating the constitutional provision: "Nor shall the legislature prescribe any other" oath of office than the oath prescribed by this Constitution." Supra note 64.
 Supra note 65. See ALTFELD, THE JEWISH STRUGGLE FOR RELIGIOUS AND CIVIL LIBERTY IN MARYLAND (1924). Chief Justice Marshall must have known of this struggle, yet in 1819 he uttered the dangerous dictum that the legislature may superadd to the oath directed by the Constitution such other oath of office as its wisdom may suggest. See McCulloch v. Maryland, 4 Wheat. 316, 416 (U. S. 1819).
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