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U.S. Supreme Court

TORCASO v. WATKINS, 367 U.S. 488 (1961)

367 U.S. 488


This is the complete text of the U.S. Supreme Court decision which ruled that the states could not require "test oaths." The footnotes are the Court's; highlighted phrases take the reader to my comments. --kc


TORCASO v. WATKINS, CLERK.
APPEAL FROM THE COURT OF APPEALS OF MARYLAND.
No. 373.
Argued April 24, 1961.
Decided June 19, 1961.

Appellant was appointed by the Governor of Maryland to the office of Notary Public; but he was denied a commission because he would not declare his belief in God, as required by the Maryland Constitution. Claiming that this requirement violated his rights under the First and Fourteenth Amendments, he sued in a state court to compel issuance of his commission; but relief was denied. The State Court of Appeals affirmed, holding that the state constitutional provision is self-executing without need for implementing legislation and requires declaration of a belief in God as a qualification for office. Held: This Maryland test for public office cannot be enforced against appellant, because it unconstitutionally invades his freedom of belief and religion guaranteed by the First Amendment and protected by the Fourteenth Amendment from infringement by the States. Pp. 489-496.

223 Md. 49, 162 A. 2d 438, reversed.

Leo Pfeffer and Lawrence Speiser argued the cause for appellant. With them on the briefs were Joseph A. Sickles, Carlton R. Sickles, Bruce N. Goldberg, Rowland Watts and George Kaufmann.

Thomas B. Finan, Attorney General of Maryland, and Joseph S. Kaufman, Deputy Attorney General, argued the cause and filed a brief for appellee. C. Ferdinand Sybert, former Attorney General of Maryland, and Stedman Prescott, Jr., former Deputy Attorney General, appeared with Mr. Kaufman on the motion to dismiss or affirm.

Briefs of amici curiae, urging reversal, were filed by Herbert A. Wolff and Leo Rosen for the American Ethical Union, and by Herbert B. Ehrmann, Lawrence Peirez, Isaac G. McNatt, Abraham Blumberg, Arnold Forster, Paul Hartman, Theodore Leskes, Edwin J. Lukas and Sol Rabkin for the American Jewish Committee et al. [367 U.S. 488, 489]

MR. JUSTICE BLACK delivered the opinion of the Court.

Article 37 of the Declaration of Rights of the Maryland Constitution provides:

"[N]o 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 . . . ."

The appellant Torcaso was appointed to the office of Notary Public by the Governor of Maryland but was refused a commission to serve because he would not declare his belief in God. He then brought this action in a Maryland Circuit Court to compel issuance of his commission, charging that the State's requirement that he declare this belief violated "the First and Fourteenth Amendments to the Constitution of the United States . . . ."1 The Circuit Court rejected these federal constitutional contentions, and the highest court of the State, the Court of Appeals, affirmed,2 holding that the state constitutional provision is self-executing and requires declaration of belief in God as a qualification for office without need for implementing legislation. The case is therefore properly here on appeal under 28 U.S.C. 1257 (2).

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 [367 U.S. 488, 490] 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. The power and authority of the State of Maryland thus is put on the side of one particular sort of believers - those who are willing to say they believe in "the existence of God." It is true that there is much historical precedent for such laws. Indeed, it was largely to escape religious test oaths and declarations that a great many of the early colonists left Europe and came here hoping to worship in their own way. It soon developed, however, that many of those who had fled to escape religious test oaths turned out to be perfectly willing, when they had the power to do so, to force dissenters from their faith to take test oaths in conformity with that faith. This brought on a host of laws in the new Colonies imposing burdens and disabilities of various kinds upon varied beliefs depending largely upon what group happened to be politically strong enough to legislate in favor of its own beliefs. The effect of all this was the formal or practical "establishment" of particular religious faiths in most of the Colonies, with consequent burdens imposed on the free exercise of the faiths of nonfavored believers.3

There were, however, wise and far-seeing men in the Colonies - too many to mention - who spoke out against test oaths and all the philosophy of intolerance behind them. One of these, it so happens, was George Calvert (the first Lord Baltimore), who took a most important part in the original establishment of the Colony of Maryland. He was a Catholic and had, for this reason, felt compelled by his conscience to refuse to take the Oath of Supremacy in England at the cost of resigning from high governmental office. He again refused to take that oath when it was demanded by the Council of the Colony of [367 U.S. 488, 491] Virginia, and as a result he was denied settlement in that Colony.4 A recent historian of the early period of Maryland's life has said that it was Calvert's hope and purpose to establish in Maryland a colonial government free from the religious persecutions he had known - one "securely beyond the reach of oaths . . . ."5

When our Constitution was adopted, the desire to put the people "securely beyond the reach" of religious test oaths brought about the inclusion in Article VI of that document of a provision that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Article VI supports the accuracy of our observation in Girouard v. United States, 328 U.S. 61, 69, that "[t]he test oath is abhorrent to our tradition." Not satisfied, however, with Article VI and other guarantees in the original Constitution, the First Congress proposed and the States very shortly thereafter [367 U.S. 488, 492] adopted our Bill of Rights, including the First Amendment.6 That Amendment broke new constitutional ground in the protection it sought to afford to freedom of religion, speech, press, petition and assembly. Since prior cases in this Court have thoroughly explored and documented the history behind the First Amendment, the reasons for it, and the scope of the religious freedom it protects, we need not cover that ground again.7 What was said in our prior cases we think controls our decision here.

In Cantwell v. Connecticut, 310 U.S. 296, 303-304, we said:

"The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. . . . Thus the Amendment embraces two concepts, - freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be."

Later we decided Everson v. Board of Education, 330 U.S. 1, and said this at pages 15 and 16:

"The `establishment of religion' clause of the First Amendment means at least this: Neither a state nor [367 U.S. 488, 493] 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. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. 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.'"

While there were strong dissents in the Everson case, they did not challenge the Court's interpretation of the First Amendment's coverage as being too broad, but thought the Court was applying that interpretation too narrowly to the facts of that case. Not long afterward, in Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, we were urged to repudiate as dicta the above-quoted Everson interpretation of the scope of the First Amendment's coverage. We declined to do this, but instead strongly reaffirmed what had been said in Everson, calling attention to the fact that both the majority and the minority in Everson had agreed on the principles declared in this part of the Everson opinion. And a concurring opinion in McCollum, written by MR. JUSTICE FRANKFURTER and joined by the other Everson dissenters, said this:

"We are all agreed that the First and Fourteenth Amendments have a secular reach far more penetrating [367 U.S. 488, 494] in the conduct of Government than merely to forbid an `established church.'. . . We renew our conviction that `we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion.'"8

The Maryland Court of Appeals thought, and it is argued here, that this Court's later holding and opinion in Zorach v. Clauson, 343 U.S. 306, had in part repudiated the statement in the Everson opinion quoted above and previously reaffirmed in McCollum. But the Court's opinion in Zorach specifically stated: "We follow the McCollum case." 343 U.S., at 315. Nothing decided or written in Zorach lends support to the idea that the Court there intended to open up the way for government, state or federal, to restore the historically and constitutionally discredited policy of probing religious beliefs by test oaths or limiting public offices to persons who have, or perhaps more properly profess to have, a belief in some particular kind of religious concept.9
[367 U.S. 488, 495]
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,10 and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.11

In upholding the State's religious test for public office the highest court of Maryland said:

"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."

The fact, however, that a person is not compelled to hold public office cannot possibly be an excuse for barring him [367 U.S. 488, 496] from office by state-imposed criteria forbidden by the Constitution. This was settled by our holding in Wieman v. Updegraff, 344 U.S. 183. We there pointed out that whether or not "an abstract right to public employment exists," Congress could not pass a law providing "`. . . that no federal employee shall attend Mass or take any active part in missionary work.'"12

This Maryland religious test for public office unconstitutionally invades the appellant's freedom of belief and religion and therefore cannot be enforced against him.

The judgment of the Court of Appeals of Maryland is accordingly reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

MR. JUSTICE FRANKFURTER and MR. JUSTICE HARLAN concur in the result.


Footnotes

[Footnote 1] 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.

[Footnote 2] 223 Md. 49, 162 A. 2d 438. Appellant's alternative contention that this test violates the Maryland Constitution also was rejected by the state courts.

[Footnote 3] See, e. g., I Stokes, Church and State in the United States, 358-446. See also cases cited, note 7, infra.

[Footnote 4] The letter from the Virginia Council to the King's Privy Council is quoted in Hanley, Their Rights and Liberties (Newman Press 1959), 65, as follows:

"According to the instructions from your Lordship and the usual course held in this place, we tendered the oaths of supremacy and allegiance to his Lordship[;] [Baltimore] and some of his followers, who making profession of the Romish Religion, utterly refused to take the same. . . . His Lordship then offered to take this oath, a copy whereof is included . . . but we could not imagine that so much latitude was left for us to decline from the prescribed form, so strictly exacted and so well justified and defended by the pen of our late sovereign, Lord King James of happy memory. . . . Among the many blessings and favors for which we are bound to bless God . . . there is none whereby it hath been made more happy than in the freedom of our Religion . . . and that no papists have been suffered to settle their abode amongst us. . . ."

Of course this was long before Madison's great Memorial and Remonstrance and the enactment of the famous Virginia Bill for Religious Liberty, discussed in our opinion in Everson v. Board of Education, 330 U.S. 1, 11-13.

[Footnote 5] Hanley, op. cit., supra, p. 65.

[Footnote 6] "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

[Footnote 7] See, e. g., the opinions of the Court and also the concurring and dissenting opinions in Reynolds v. United States, 98 U.S. 145; Davis v. Beason, 133 U.S. 333; Cantwell v. Connecticut, 310 U.S. 296; West Virginia State Bd. of Education v. Barnette, 319 U.S. 624; Fowler v. Rhode Island, 345 U.S. 67; Everson v. Board of Education, 330 U.S. 1; Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203; McGowan v. Maryland, 366 U.S. 420.

[Footnote 8] 333 U.S., at 213, 232. Later, in Zorach v. Clauson, 343 U.S. 306, 322, MR. JUSTICE FRANKFURTER stated in dissent that "[t]he result in the McCollum case . . . was based on principles that received unanimous acceptance by this Court, barring only a single vote."

[Footnote 9] In one of his famous letters of "a Landholder," published in December 1787, Oliver Ellsworth, a member of the Federal Constitutional Convention and later Chief Justice of this Court, included among his strong arguments against religious test oaths the following statement:

"In short, test-laws are utterly ineffectual: they are no security at all; because men of loose principles will, by an external compliance, evade them. If they exclude any persons, it will be honest men, men of principle, who will rather suffer an injury, than act contrary to the dictates of their consciences. . . ." Quoted in Ford, Essays on the Constitution of the United States, 170. See also 4 Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution, 193.

[Footnote 10] In discussing Article VI in the debate of the North Carolina Convention on the adoption of the Federal Constitution, James Iredell, later a Justice of this Court, said:

". . . [I]t is objected that the people of America may, perhaps, choose representatives who have no religion at all, and that pagans and Mahometans may be admitted into offices. But how is it possible to exclude any set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for?"

And another delegate pointed out that Article VI "leaves religion on the solid foundation of its own inherent validity, without any connection with temporal authority; and no kind of oppression can take place." 4 Elliot, op. cit., supra, at 194, 200.

[Footnote 11] Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others. See Washington Ethical Society v. District of Columbia, 101 U.S. App. D.C. 371, 249 F.2d 127; Fellowship of Humanity v. County of Alameda, 153 Cal. App. 2d 673, 315 P.2d 394; II Encyclopaedia of the Social Sciences 293; 4 Encyclopaedia Britannica (1957 ed.) 325-327; 21 id., at 797; Archer, Faiths Men Live By (2d ed. revised by Purinton), 120-138, 254-313; 1961 World Almanac 695, 712; Year Book of American Churches for 1961, at 29, 47.

[Footnote 12] 344 U.S., at 191-192, quoting from United Public Workers v. Mitchell, 330 U.S. 75, 100. [367 U.S. 488, 497]


KC's Comments

This footnote is a good place to begin your legal education. If you understand these key cases, you can understand the Court's complex First Amendment jurisprudence, the historical evolution of the doctrine of "the separation of church and state," and why our culture is up to its chin in sewage. I would add a couple of cases to the list; here is the doorway to legal enlightenment:

[Back to Footnote 7]


The Court says "there can be no dispute" about whether we are dealing with a "religious test," particularly one which the Founders may have intended to prohibit in Article VI or the First Amendment. Whenever the Court says "there can be no dispute," it often means "we have long since rejected a once universally-held belief, and are only now admitting it." It used to be universally held that atheists could not take oaths, and therefore could not take an oath of office, and therefore could not hold any public office. The Court here anathematizes that once universally-held belief.

The federal Constitution, Article VI, para. 3 says:

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

There was not a great deal of dispute about whether this Article prohibited all oaths, or only those oaths which restricted members of certain Christian denominations from holding office. Many of those who ratified the Constitution expressed their understanding that what was prohibited was an oath restricting members of certain denominations. For their comments, click here.

It is clear that Maryland's constitution prohibited atheists from holding any office. It certainly is not clear if this is a "religious test" spoken of in Art. VI of the federal constitution. If it were a religious test, Article VI seems to have banned it. But in Footnote 1 the Court refuses to say whether the "religious test" provision of Article VI applies to the states. Though unclear, it can be argued that the U.S. Constitution allows atheists to hold federal offices. It is even less clear that this prohibition on religious tests would have affected the states. It cannot at all be argued that the Constitution prohibits Christians from taking oaths in God's Name.  [Back to opinion]


The Court says

The power and authority of the State of Maryland thus is put on the side of one particular sort of believers - those who are willing to say they believe in "the existence of God."

This is jibberish. What other sort of "believer" is there, but one who believes? It is true that the Founders wanted to give equal rights and protection to [Christian] believers of every denomination, and did not want to put the power and authority of the state on the side of one particular sort of believers. But since when are atheists considered "believers?" (Answer: since this case was decided in 1961.) (Actually, the answer goes back to the Everson case.) The Founders were not "deists," and did not intend the federal constitution to strip the states' power to declare that an atheist could not swear "so help me, God" in "good faith."  [Back to opinion]


As Calvin put it, "There are more errors than words in this sentence." The Court says,

it was largely to escape religious test oaths and declarations that a great many of the early colonists left Europe and came here hoping to worship in their own way

Yes, Presbyterians came here to escape Anglican oaths. But there is absolutely no evidence that they envisioned an oath-less society. There is no evidence at all that those who came here "to worship in their own way" envisioned a society led by atheists and infidels.

Maryland's constitution excluded atheists from taking the oath of office, and in declaring that part of their constitution "unconstitutional," the Court cites the Puritans?!? Unbelievable.  [Back to opinion]


The Court says that the Puritans, when they

had the power to do so, force[d] dissenters from their faith to take test oaths in conformity with that faith. This brought on a host of laws in the new Colonies . . . .

The Puritans always had the power to exclude atheists from oath-taking, and the moment they stepped foot on these shores, they exercised this power. There never came a time when "a host of [new] laws" were written which were anti-atheist, only to be eliminated at the time of the Constitution. These laws always existed in the colonies, and they obviously existed in 1961, or this case could not have come before the U.S. Supreme Court. The Court is not acting as historian, but as novelist.  [Back to opinion]


The end of an "establishment of religion" was not created by the U.S. Constitution. This ended years before the Constitution was drafted. The First Amendment guaranteed a pre-existing state; it did not create something new.

In the 1600's and early 1700's, some colonies had state-churches. As the Court says,

The effect of all this was the formal or practical "establishment" of particular religious faiths in most of the Colonies, with consequent burdens imposed on the free exercise of the faiths of nonfavored believers.

Taxes paid for the clergy of the Congregationalist, the Presbyterian, or the Episcopalian, and office-holders had to be members of those denominations. After the revolution against Britain took place, no one wanted to pay taxes to the Church of England. There was wide-spread agreement that no particular denomination of Christians should be favored by law. Most states had constitutional provisions like this one, from the 1776 North Carolina constitution:

[T]here shall be no establishment of any one religious church or denomination in this State in preference to any other.

It is often said that just before the federal constitution was ratified, "nine out of thirteen" colonies (or some such number) had "established churches." To these "historians" I say, "Name one." The First Amendment prohibition on an "establishment of religion" was demanded by the states, who held ratification of the constitution hostage until assurances were made in an Amendment designed to protect from federal intrusion the religious freedom which already existed in all of the colonies.

[T]here shall be no establishment of any one religious sect . . . in preference to another.
New Jersey Constitution, 1776

Nevertheless, every colony agreed that an atheist would not be allowed to swear an oath to God.

The Torcaso Court doesn't seem to understand this. Their fuzzy chronicle of the controversy over "test oaths" in the colonies had to do with restrictions based on particular "sects" or "denominations" of Christians. The Maryland law in this case has nothing to do with legal preferences for particular denominations. By referring to the "'establishment' of particular religious faiths," the Court wants us to think about religious faiths like Buddhism, Hinduism, and Christianity. But this has always been a Christian nation, and the "establishment" controversy was over the various denominations of Christianity, not other "religious faiths." Certainly not atheism.  [Back to opinion]


The Court says,

Neither a state nor the Federal Government can set up a church.

 [So far so good. ]

But then the Court says,

Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.

What does the Court mean by "religion?" Does the government "prefer" a "religion" when it declares Christmas to be a holiday, or declares a national day of Thanksgiving to the God of the Bible? Some say yes.

But what does this mean:

No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.

Of course, there should be no punishment for not going to a state-approved church. No one argues for that today. But what is a "punishment" for "religious disbelief?" Maryland said that no atheist can take an oath (i.e., claim that their conscience is aroused to tell the truth or perform a promise based on their belief in a God who rewards and punishes falsehood). Is it a "punishment" prohibited by the First Amendment to say an atheist cannot take an oath in good faith? This is an absurd claim.  [Back to opinion]


Here we see the Court washout. The Court says that it will fight to block a move to

restore the historically and constitutionally discredited policy of probing religious beliefs by test oaths or limiting public offices to persons who have, or perhaps more properly profess to have, a belief in some particular kind of religious concept.

Atheism is not a "belief in some particular kind of religious concept" as the Framers understood it. It is one thing to "test" a person's belief in the mode of baptism or his membership in a particular denomination. All the Christians who signed the Constitution agreed on equality for all Christian denominations. But the overwhelming majority also agreed that an atheist does not have the requisite religious beliefs to take an oath.  [Back to opinion]


The Court says Maryland was intended to be "securely beyond the reach of oaths . . . ." Certainly Lord Calvert wanted to eliminate laws which discriminated against Christians because of their church affiliation. But is there any evidence that Lord Calvert sought to eliminate all oaths? Did he envision witnesses in court testifying without taking an oath? Did he imagine men assuming political office without an oath of office? The Court is exploiting ambiguity to establish the religion of Secular Humanism.  [Back to opinion]


Writing in the Harvard Law Review [75:40,143 (1961)], Alexander M. Bickel writes:

The [Torcaso] decision raises at least two immediate problems. One is the validity of the many state328 and federal329 provisions prescribing oaths of office ending in the words "so help me God." It is true that in most jurisdictions the person assuming office is allowed to say "I affirm" rather than "I swear."330 But if a person exercising his option to affirm must nevertheless utter this reference to God, the requirement may be unconstitutional in light of the present decision. The other practice called into question is the retention by a few states, including Maryland, of the common law rule disqualifying those who do not believe in God from testifying in judicial proceedings.331 But the Court dealt with the application of Article 37 [of the Maryland constitution] to officeholders in general rather than specifically to a notary public and so never reached the question whether the disqualification of nontheists as notaries could be justified on the practical ground that they would be incompetent under Maryland law to verify in court signatures they had notarized. The disqualification of non-theists as witnesses was widely accepted at the time the first amendment was adopted;332 nevertheless, the constitutionality of this practice now seems doubtful.

328. E.g., Va. Const. 34.

329. E.g., 28 U.S.C. 453 (1958) (oath taken by Justices of the Supreme Court).

330. See, e.g., 1 U.S.C. 1 (1958).

331. See, e.g., Md. Declaration of Rights art. 36. See generally 6 Wigmore, Evidence 1816-17 (3rd. ed. 1940).

332. See Hartogenesis, "Denial of Equal Rights to Religious Minorities and Nonbelievers in the United States," 39 Yale L.J. 659, 667 (1930). In 1787 most of the thirteen original states also had religious qualifications for public office. Zollman, "Religious Liberty in the American Law," 17 Mich. L. Rev. 355-56 (1919). The historical acceptance of Sunday laws was one reason for upholding their validity in McGowan v. Maryland, 366 U.S. 420, 431-40 (1961) discussed at pp. 147-49 infra.

Bickel's discussion of "affirming" as opposed to "swearing" and how the phrase "so help me, God" contradicts the act of "affirming" is inaccurate. The option to "affirm" was not given to accomodate atheists, but for Quakers, who misunderstood Jesus' words in the New Testament, and refused to say "I swear." They were still allowed to testify because they believed in God. Atheists were not allowed to take an oath even if they wanted to say "I affirm." [Return to opinion]

The Founders excluded atheists.

The Founders frowned on "deists."


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