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Pleadings Before the California Supreme Court

"Religion" in the Constitution and in Torcaso v. Watkins

Trinitarian oaths existed in this country both before and after the Constitution was ratified. It is true that over the two centuries since the Constitution was ratified, a number of states had altered their oaths of office to reflect a "lowest common denominator" of Christianity,[1] or secularized them, though never entirely removing the religious character of the oath. Christian oaths existed in many states until the Supreme Court struck them down as "unconstitutional." But this did not occur until 1961.[2] Why Oaths of office requiring belief in Christianity could persist for 170 years in the face of an Article in the Constitution allegedly prohibiting such oaths is a study which will lead us to a remedy for Petitioner's impasse.

Historical Revisionism in Torcaso v. Watkins

Torcaso v. Watkins involved the denial of the issuance of a notary commission to an applicant who refused to declare his belief in the existence of God as required by the Maryland Constitution.[3]

The U.S. Supreme Court noted that "Article VI of the Federal Constitution [provides] that 'no religious test shall ever be required as a Qualification to any Office or public Trust under the United States.'"[4] The Court then declared that

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. . . .[5]
The Constitution said not to have one; Maryland had one.[6] One hundred and eighty-five years' worth of Marylandian jurists must surely be humiliated by this embarrassing oversight. How could this egregious transgression of unambiguous Constitutional mandate go so long unnoticed?

The answer is as simple as it is controversial. Maryland's requirement that officers declare their belief in God was never a "religious test" as prohibited by Article VI or the First Amendment of the U.S. Constitution.

Article 37 of the Declaration of Rights of the Maryland Constitution is either evidence of this fact, or more evidence of the awkward incompetence of the Maryland Constitutional Convention. It says, in language taken from the Federal Constitution, "[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 Maryland Constitution, according to the Torcaso Court, simultaneously forbids and requires "religious tests." And this "indisputable" contradiction occurs in the space of 35 words within a single article of the constitution's Declaration of Rights.

The Court's perception of a contradiction is actually the Court's misunderstanding of legal history and the use of the word "religion" and "religious test" at the time both constitutions were written.[7] The Torcaso Court would impute an enigmatically contradictory character to both the Maryland Constitution and to many Framers of the Federal Constitution.

For example,[8] James Wilson, who later became a Justice on the U.S. Supreme Court, joined Thomas Mifflin in signing the U.S. Constitution, including Article VI, yet returned home to Pennsylvania to help draft the state constitution in 1790,[9] which required that each member of the legislature,

before he takes his seat, shall make and subscribe the following declaration, viz, "I do believe in one God, the Creator and Governor of the universe, the rewarder of the good and the punisher of the wicked, and I do acknowledge the Scriptures of the Old and New Testament to be given by Divine Inspiration."[10]
After George Read, Richard Bassett, and John Dickinson signed a Constitution which forbad "religious tests," they likewise returned to their home state and drafted Delaware's constitution,[11] which, without contradicting their work in Philadelphia, required:
Every person who shall be chosen a member of either house, or appointed to any office or place of trust . . . shall . . . make and subscribe the following declaration, to wit: "I ________, do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, Blessed for evermore; and I do acknowledge the holy scripture of the Old and New Testaments to be given by divine inspiration."
After signing the Federal Constitution, William Blount returned to Tennessee and helped create the 1796 Tennessee Constitution,[12] a document which makes perfect sense to a Christian Theocrat, but is internally self-contradictory by Torcaso standards:
Art. VIII, Sec. II. No person who denies the being of God, or a future state of rewards and punishments, shall hold any office in the civil department of this State.

Art. XI, Sec. IV, That no religious test shall ever be required as a qualification to any office or public trust under this state.

Most states had similar requirements, often drafted by those who signed the federal Constitution. Their actions are bafflingly inexplicable by Torcaso standards, standards which have evolved over generations of transition from a Christian Theocracy to a Humanist Theocracy. But when the definition of "religion" held by most in that day is understood, these seemingly contradictory requirements are intelligible. That definition is shaped by the culturally-dominant religion of the day, which was not Secular Humanism, as in our day, but Christianity. Notice the quagmire in which Leo Pfeffer, writing in the Torcaso framework, finds himself:
[T]he standard legal definition of the term "religion" is the one given by the United States Supreme Court in Davis v. Beason:[13] "The term 'religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for he being and character, and of obedience to his will." This would seem to have been a fairly workable definition for the time when it was formulated (i.e., when religion assumed a belief in a deity[14]); but in the same case the court said that to call the Mormons' advocacy of polygamy "a tenet of religion is to offend the common sense of mankind"; and the same court could not accept as "religion" the belief of the "Thugs of India" in assassination or the belief in "human sacrifices by our ancestors in Britain."[15]
As Torcaso did, and Everson before, Pfeffer turns to Madison's Memorial and Remonstrance[16] in an attempt to shore up a viewpoint which looks as though it is going to lend moral sanction to assassination and human sacrifice:
[But] Madison characterized as an "arrogant pretension" the implication that "the civil magistrate is a competent judge of religious truths." To a substantial extent, the same characterization is appropriate to an implication that the civil magistrate is a competent judge of what constitutes religion.
Madison was clearly influenced by Enlightenment and Masonic influences, but he still spoke of "religion" as "the duty which we owe to our Creator."
It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign.[17]
This is precisely why Maryland required that before he be admitted to a "subordinate Association" of Civil Society, Torcaso affirm his allegiance to the Universal Sovereign. A "religious test" was simply a test of an "acceptable" way of "render[ing] to the Creator such homage" as was due, and the specificity of dispute between, e.g., the Baptists and the Episcopalians, was beyond the scope of the Civil Magistrate. But broadly speaking, Madison recognized the existence of "false Religions" and "nations who continue in darkness,"[18] in stark contrast to the post-World War II Courts which so frequently cite him.

Supreme Court Justice Joseph Story, Founder of Harvard Law School and the foremost of American legal minds, says the interpretation of Constitutional provisions (here, the First Amendment) must be made in this Christian context:

We are not to attribute this prohibition of a national religious establishment to an indifference to religion in general, and especially to Christianity (which none could hold in more reverence, than the farmers of the Constitution). . . . Probably, at the time of the adoption of the Constitution, and of the amendment to it now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the State. . . . An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.[19]
Thus a "religious test" or an "establishment of religion" speak of a "denominational test within Christianity," or "an establishment of a particular denomination of Christianity." This definition of "religion" can be seen in the discussions of the Establishment clause of the First Amendment ("no...establishment of religion") during the state conventions to ratify the Constitution. In North Carolina, Gov. Johnston expressed these very representative remarks:
I know of but two or three states where there is the least chance of establishing any particular religion. The people of Massachusetts and Connecticut are mostly Presbyterians. In every other state, the people are divided into a great number of sects. In Rhode island, the tenets of the Baptists, I believe, prevail. In New York, they are divided very much: the most numerous are the Episcopalians and the Baptists. In New Jersey, they are as much divided as we are. In Pennsylvania, if any sect prevails more than others, it is that of the Quakers. In Maryland, the Episcopalians are most numerous, though there are other sects. In Virginia, there are many sects; you all know what their religious sentiments are. So in all the Southern States they differ; as also in New Hampshire. I hope, therefore, that gentlemen will see there is no cause of fear that any one religion shall be exclusively established.[20]

Also speaking to the First Amendment in the same convention, Mr. Iredell:

[Congress] certainly [has] no authority to interfere in the establishment of any religion whatsoever; and I am astonished that any gentleman should conceive they have. . . . Happily no sect here is superior to another. . . . This article is calculated to secure universal religious liberty, by putting all sects on a level.[21]
As Story wrote specifically regarding the purposes of Article VI:
It is easy to foresee, that without some prohibition of religious tests, a successful sect, in our country, might, by once possessing power, pass test-laws, which would secure to themselves a monopoly of all the offices of trust and profit, under the national government.[22]
As late as 1951, authorities still recognized the definition of "religion" articulated in the "Mormon" cases:
Religion . . . . As used in constitution provisions forbidding the "establishment of religion," the term means a particular system of faith and worship recognized and practiced by a particular church, sect, or denomination. Reynolds v. U.S. 98 U.S. 149, 25 L.Ed. 244; Board of Education v. Minor, 23 Ohio St. 241, 13 Am.Rep. 233.[23]
Thus, the "establishment" of a "religion" was the establishment of a particular Christian denomination or sect. Similarly, a "religious" test would be better understood in our day by calling it a denominational test. But these provisions were understood in a context of a Christian civil structure.

This line of analysis is easily applied in Petitioner's case. Petitioner, as an anarchist, opposes State-mandated thought-patterns for anyone, even for holders of "public offices" (which he also opposes).[24] Thus, Petitioner is not requesting a return to test-oaths. But a study of legal history cannot support the proposition that the Constitution prohibits the voluntary taking of a Trinitarian Oath.

Hodge's Warning (1887)

The holding by Torcaso that the Constitution does not allow a state to administer an oath to the God of the Bible cannot be analyzed apart from the historical understanding that the nation's legal system has been shifted from Christian Theocratic foundations to Secular Humanistic foundations. The understanding of the First Amendment and Article VI, cl. 3 as dealing with rivalries between Christian denominations[25] in a context of Christian culture has been replaced with a theory that places Christianity on a par with human sacrifice, all the while denying the inescapable fact that a new theocracy of materialistic hedonism has been established. Princeton professor Archibald Hodge saw the trend in 1887, and sounded this alarm:

The tendency is to hold that [the public school] system must be altogether secular. The atheistic doctrine is gaining currency, even among professed Christians and even among some bewildered Christian ministers, that an education provided by the common government should be entirely emptied of all religious character.[26] The Protestants object to the government schools being used for the purpose of inculcating the doctrines of the Catholic Church, and Romanists object to the use of the Protestant version of the Bible and to the inculcation of the peculiar doctrines of the Protestant churches. The Jews protest against the schools being used to inculcate Christianity in any form, and the atheists and agnostics protest against any teaching that implies the existence and moral government of God. It is capable of exact demonstration that if every party in the State has the right of excluding from the public schools whatever he does not believe to be true, then he that believes most must give way to him that believes least, and then he that believes least must give way to him that believes absolutely nothing, no matter how small a minority the atheists or the agnostics may be.[27]

. . . I am as sure as I am of Christ's reign that a comprehensive and centralized system of national education, separated from religion, as is now commonly proposed, will prove the most appalling enginery for the propagation of anti-Christian and atheistic unbelief, and of anti-social nihilistic ethics, individual, social and political, which this sin-rent world has ever seen.[28]

Since 1961, with the secularizing of oaths, and two years later, with the complete secularizing of schools, we have seen Hodge's "enginery" working overtime, generating the problems Petitioner seeks to help correct.[29] A fundamental injustice would be done if he were not permitted to do so.


(1) See the 1887 warning of A.A. Hodge, as quoted by R.J. Rushdoony, "The Lowest Common Denominator," The Messianic Character of American Education, 333-39 (1963)(Reprinted at the conclusion of this Appendix.)

(2) Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961).

(3) The essence of this provision dates back to 1776. Originally calling for "belief in the Christian religion," it was subsequently (1851) amended to include any Jew who would declare his "belief in a future state of rewards and punishments." Further amendment (1864) eliminated the reference to Jews and simply added after "Christian religion" "or in the existence of God" etc. "[T]he Convention itself was declaring that belief in the existence of God should be a qualification for office, but that no other religious test should be required." Torcaso v. Watkins, 223 Md. 49 at __, 162 A.2d 438 at 441 (1960).  [Torcaso, 367 U.S. 488 at 489]

(4) The court went on to say, "Because we are reversing the judgment on other grounds [viz., the First Amendment], we find it unnecessary to consider appellant's contention that this provision applies to state as well as federal offices." Torcaso v. Watkins, 367 U.S. 488 at 489n.1, 81 S.Ct. 1680 at n.1.

(5) Torcaso v. Watkins, 367 U.S. 488 at 489, 81 S.Ct. 1680 at 1681.

(6) As did at least 8 other states, even as late as 1961. Leonard F. Manning, The Law of Church-State Relations in a Nutshell, St. Paul: West Publishing Co., 1981, p. 3.

(7) Both historical usage and legal precedents were either misunderstood or deliberately ignored by those who secularized support oaths and public schools (by removing voluntary prayer and Bible reading). Enlightening is the fact that of the 1961-63 Supreme Court Justices, eight of nine had arrived on the Court with an extended history of political but not judicial experience. Chief Justice Earl Warren had been the Governor of California for ten years prior to his appointment to the Bench; Justice Hugo Black had been a U.S. Senator for ten years preceding his appointment; Justice Felix Frankfurter had been an assistant to the Secretary of Labor and a founding member of the ACLU; Justice Arthur Goldberg [began tenure Oct. 1, 1962] had been the Secretary of Labor and Ambassador to the United Nations; Justice William Douglas was chairman of the Securities and Exchange Commission prior to his appointment; all the justices except Potter Stewart had similar political backgrounds. Justice Potter Stewart, having been a federal judge for four years prior to his appointment, was the only member of the Court with extended federal Constitutional experience before his appointment; interestingly Justice Stewart was the only Justice who objected to the removal of prayer from public schools on the basis of precedent. He alone acted as a judge; the rest acted as architects of the new Secular Polis. David Barton, The Myth of Separation, Aledo, TX: Wallbuilder Press, 1992, p. 148.

(8) The following are from and additional examples can be found in David Barton, An Investigation of the Meaning of Article VI of the Constitution, unpublished monograph, 1993, p. 3. (Available from Specialty Research Associates, P.O. Box 397, Aledo, TX 76008.) See generally, Barton, The Myth of Separation, above note 7.

(9) The American's Guide: The Constitutions of the United States of America, Trenton: Moore and Lake, 1813, pp. 163-64.

(10) Pennsylvania Frame of Government, Sec 10, in The Constitutions of the Several Independent States of America, Boston: Norman and Bowen, 1795, p. 81

(11) The Constitutions of All the States According to the Latest Amendments, Lexington: Thomas T. Skillman, 1817, p. 181.

(12) The American's Guide: Comprising the Declaration of Independence; the Articles of Confederation; the Constitution of the United States, and the Constitutions of the Several States Composing the Union, Trenton: Moore and Lake, p. 320 (1838).

(13) 122 U.S. 333 (1890); see also George vs. United States, 196 F.2d 445 (1952). [Pfeffer's note]

(14) An assumption which was altered in the case of Everson v. Board of Education of Ewing TP. where "belief" was accorded the same status as "disbelief" (330 U.S. 1 at 15-16, 67 S.Ct. 504 at 511) a break with the past. This new understanding of "religion" was followed in Torcaso (at 367 U.S. 492-495, 81 S.Ct. 1683-84). [Petitioner's note]

(15) A conclusion which was inescapable for a court in the Anglo-American legal tradition, which presupposed the Truth of Christianity. "Christianity, general Christianity, is and always has been part of the common law. . . . The laws and institutions . . . are built on the foundation of reverence for Christianity." Updegraph v. Commonwealth, 11 Serg. & R. 393, 399, 402 (Sup.Ct.Penn., 1824).

(16) Reprinted in its entirety in Everson v. Board of Education of Ewing Tp., 330 U.S. 1 at 63-72, 67 S.Ct. 504 at 535-539. A greatly misused but standard source quoted by those attempting to separate Christianity from the State. Madison publicly advocated no such thing.

(17) Memorial and Remonstrance, in ibid., at 330 U.S. 64, 67 S.Ct. 535.

(18) Ibid., at 330 U.S. 70, 67 S.Ct. 538 [§12].

(19) Story, A Familiar Exposition of the Constitution of the United States, New York: Harper & Brothers, 1854, pp. 259-61.

(20) Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Washington: Printed for the Editor, 1836, vol. IV, p. 199. Emphasis added.

(21) Ibid., p. 194. Emphasis added.

(22) Joseph Story, Commentaries on the Constitution of the United States, Abridged Boston: Hilliar, Gray & Co., 1833, p. 690.

(23) Black's Law Dictionary, St. Paul: West Publishing Co., 1951, p. 1455 ["Religion"].

(24) If Petitioner had to be subjected to the institutionalized violence of "archists" (office-holders), he would prefer that they be tied in some way to the moral absolutes of Christianity and limited thereby.

(25) "Archist" rivalries which in fact led (indirectly) to the legislation which secularized American law. See Hodge, below. Petitioner, unable to support ecclesiastical constitutions as well, has not been a member of a religious denomination for nearly a decade.

(26) At this point it hadn't: the Northwest Ordinance of 1787 mandated that "religion" (i.e., Christianity) be taught in schools; see Appendix D, pp. 56ff.

(27) A.A. Hodge, Popular Lectures on Theological Themes, Phila: Presbyterian Board of Publications, 1887, p. 283f. Quoted in R.J. Rushdoony, The Messianic Character of American Education, Nutley, NJ: The Craig Press, 1963, p. 335.

(28) Hodge, p. 280, in Rushdoony, idem.

(29) See generally, David Barton, America: To Pray or not to Pray, Aledo, TX: Wallbuilder Press, 1991.