Article VI, the atheist notary and the clause every believer should defend

Imagine a man who wants to do the most boring job in American public life. He wants to be a notary public. A notary stamps documents. He confirms that you are who you say you are and that you signed what you say you signed. That is the whole job. And imagine the state tells him he may have the little stamp only after he declares, in writing, that he believes in God.

You don't have to imagine it, because it happened in Maryland, and the man's name was Roy Torcaso. He declined. He said he did not hold that belief, and the state refused to commission him. A case about a rubber stamp ended up at the Supreme Court of the United States, and the result is one that every believer in this country, and I mean every believer, should be glad of. Let me tell you why a conservative who goes to church on Sunday should be standing in line to defend an atheist's right to notarize a deed.

What the text says

Start with the words. Article VI of the Constitution, in its third clause, requires officeholders at both levels of government to swear or affirm to support the Constitution. Then it adds that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

Three things about that sentence are worth a second look.

1. "Ever." The framers did not say "for now" or "unless Congress decides otherwise." They wrote a permanent bar.
2. "Office or public Trust." That covers every post under the federal government, from the presidency down to a clerkship.
3. "Oath or Affirmation." The same clause allows an officeholder to affirm instead of swearing. That was a courtesy to Quakers and others whose faith forbids oaths, and it shows the framers were already thinking about the conscience of the believer, not just the skeptic.

Notice too what the clause does not say. It does not tell any American what to believe. It does not stop a voter from preferring a candidate who prays, or a candidate from speaking about his faith. It is a limit on the government, not on the electorate. What it forbids is the government writing a creed into the job description.

Philadelphia, August 1787

The clause came late and with little fuss. In the Convention's closing weeks, Charles Pinckney of South Carolina proposed the ban on a religious test. Roger Sherman of Connecticut, a devout Congregationalist, objected, not because he wanted tests but because he thought the clause unnecessary. The prevailing liberality of the age, he said, was security enough against religious tests. Others disagreed and the Convention adopted the clause with almost no opposition.

Sherman's confidence turned out to be misplaced, and that is the point of this post. Public opinion in the founding era was not as liberal as he thought. Look at the states.

The states did not follow

The federal clause bound only the federal government. The new Constitution said nothing about how a state could choose its own officials, and a number of the original states had religious tests in their own constitutions.

North Carolina is the one the record shows most clearly. Its 1776 constitution barred from office anyone who denied the truth of the Protestant religion or the divine authority of the Old and New Testaments. That provision was still in force when the state's convention met in July 1788 to decide whether to ratify the federal Constitution. Some delegates feared that the federal ban on religious tests would let in Catholics, pagans and unbelievers. James Iredell, a lawyer who would later sit on the Supreme Court, rose to defend the clause. His argument was the one every believer should memorize: religious tests have a long record of being used by whichever sect happens to hold power against everyone else, and the creed in power in one state may be the creed out of power in the next.

North Carolina did not take Iredell's advice on its own state constitution right away. The Protestant requirement stayed on the books until a convention in 1835 changed the word "Protestant" to "Christian." That opened state office to Catholics, but not to Jews, and a bar on those who denied the existence of God stayed in the state's law for a long time after that.

Maryland is the other story, because it is the one that produced Torcaso. The Maryland Declaration of Rights required officeholders to declare a belief in God. Before 1826 it went further and required a declaration of belief in the Christian religion, which meant that Maryland's Jews could not hold public office at all. The Maryland legislature fixed the Christian test in 1826, after a long fight sometimes called the "Jew Bill" in which a Christian legislator, Thomas Kennedy of Washington County, led the push. The belief-in-God test stayed.

Other states had their own versions, some aimed at Catholics, some at Jews, some at anyone who would not affirm the Trinity. The details differed. The principle was the same: the government of the state could demand that you believe the right thing before it would let you serve.

Why a believer should care more than anyone

Here is the core of my argument, in numbered premises.

1. A religious test is only as good as the people deciding what it says. The government that requires belief in God gets to define "God," define "belief," and decide who is lying.
2. Majorities change. A test that is written to favor your church today will be read by someone else's majority tomorrow.
3. History shows exactly who gets hurt. In the colonies and early states, the tests excluded Catholics, Jews, Quakers and other minority Protestants. Many Americans' own ancestors were excluded from office by tests in one place or another.
4. The remedy is not a better test. It is no test.

Think of John F. Kennedy in 1960. A major party nominated a Catholic for President, and a good many Americans in good faith worried what that meant. In September of that year he spoke to a gathering of Protestant ministers in Houston and said that he believed in an America where the separation of church and state was absolute. Whatever you think of the politics of that speech, it shows the clause working in real life. Nobody could enforce a rule that a Catholic couldn't be President. The only thing that could stop him was the voters, and they chose him.

Now flip it around. A believer who thinks the clause is a weapon of the secular left has it backwards. Picture a hypothetical future in which a majority in some state decides that a public office-holder must affirm a civic creed that your church considers false. How would you argue against it? You would argue that the government has no business demanding belief. That is Article VI. The clause is the believer's shield, and you cannot keep the shield for yourself while handing the sword to the other side.

I would go one step further and say that the best defenders of religious liberty in American history understood this. The Virginia fight over religious freedom was won in large part by Baptists, who had been jailed for preaching without a license from the established church. They understood that a government with the power to demand a creed would sooner or later demand somebody else's. For that story, see Baptists, Madison and the Virginia fight that put religious liberty first.

Torcaso v. Watkins

Back to Maryland. Roy Torcaso was appointed a notary public by the governor in 1959. The Maryland Constitution required an officeholder to declare a belief in the existence of God, and the commission depended on that declaration. Torcaso refused, and the commission was withheld. He sued. The Maryland courts upheld the requirement, and the Supreme Court took the case.

The opinion came down on June 19, 1961, and the Court was unanimous in the result. Justice Hugo Black wrote for the Court that a state cannot constitutionally require a person to profess belief in God as the price of public office. The Court said that neither a state nor the federal government can pass laws or impose requirements that aid all religions as against non-believers. It rested the decision on the First Amendment as applied to the states through the Fourteenth. Two justices, Frankfurter and Harlan, agreed in the result without joining the full reasoning.

The case also contains a footnote that has produced a good deal of argument ever since, because it listed "secular humanism" among the belief systems the Court described as religions. The footnote is not the holding, but you will hear it cited in debates about religion in schools, so now you know where it comes from.

What the case did to the older tests was blunt. Every state religious test for public office was made unenforceable. Some of them still sit in state constitutions today as dead text. The Texas Constitution, for example, bans religious tests but adds a proviso that officeholders must acknowledge the existence of a Supreme Being. After Torcaso, that proviso cannot be enforced. A few states have left such language on the books, and I'd argue that a clean-up would be worth doing, because a law that cannot be enforced still tells a citizen something false about his rights.

The best argument on the other side

Let me be fair about the position of people who would keep such tests. They are not villains. The best version of their argument goes like this.

An oath is a serious thing. A person who swears to uphold the Constitution is calling on something higher than himself to hold him to it. If a man does not believe there is anything higher, what holds him? So a test for belief in a Supreme Being is a way of making sure the oath means something. And, they add, a society is entitled to make some demands of its officeholders about the moral foundations of the country.

I have three answers.

1. The Constitution already gave the answer in the same clause: an officeholder may affirm instead of swear. The framers decided that the seriousness of the commitment lies in the promise and the penalty for breaking it, not in the metaphysics of the person promising. Perjury law and impeachment are real enforcement. A belief test is not.
2. A test is a poor filter. A man willing to lie to get a job will lie on a form. The people it keeps out are the honest ones, who will not say what they do not believe. A religious test thus selects against honesty.
3. The moral foundations of the country are the business of voters. Americans are free to ask a candidate about his convictions and to vote accordingly. That is a very different thing from having a law that disqualifies him.

I'd add one more point, and it is a conservative one. If you believe religion is a good for society, you should want it freely chosen. A test that makes people profess belief to get a job produces professions, and not necessarily belief.

What the clause does not do

Be careful of claims on either side that the clause says more than it does.

• It does not remove God from public life. Presidents have prayed at inaugurations, legislatures open with chaplains, and Americans hold their offices with a Bible under their hands if they choose.
• It does not apply to private employers or churches. A church can and does require its ministers to hold its faith, a point covered in why the government cannot tell a church who its ministers are.
• It does not stop voters from using religion as a reason to vote one way or another.
• It does not say the government must be hostile to religion. The same First Amendment that stops tests also protects free exercise.

If you want to see how those lines are drawn elsewhere, Seven Things Americans Get Wrong About the First Amendment takes on the common mistakes, and where 'a wall of separation' really comes from and what it was built for traces the origin of the best-known phrase in this area. A companion post, Seven claims about God and the founding, tested against the record, tests what the founders actually said about God, one claim at a time.

The verdict

Roy Torcaso was not a hero of the conservative movement and he did not set out to be a hero of anyone's. He wanted to notarize papers. But the principle he won is the one that guards your pew as surely as it guards his lack of one. A government that can demand a creed can demand the wrong creed. The men in Philadelphia in 1787 understood that, even when some of the states took longer to learn it. We should not forget it just because the person standing in the doorway this time believes something different from us.

The bottom line

• Article VI bars any religious test for federal office, and Torcaso v. Watkins (1961) extended the principle to the states. That protects believers from hostile majorities as much as it protects skeptics.
• When you hear a state constitution still has a "Supreme Being" requirement on the books, you can check the text on the state legislature's website, and you can ask your legislator to clean it up. It cannot be enforced.
• Judge candidates the way the Constitution intends: by their records and by their character, and not by a government-imposed test. As a voter you are free to care about faith, and you should say so freely.
• If you want religious liberty for your own church, defend it first for the neighbor you disagree with. The argument that protects you is the same argument that protects him.