Religious Requirements to Hold Public Office?

Heather Greene —  July 20, 2014 — 20 Comments

It may not surprise anyone that the word “God,” “Almighty God,” or similar, is written into the constitution of all 50 states. In most cases, such words are found in the preambles and in the, often required, oaths of office. The mention of “God,” or the like, is used predominantly in reverent thanks or acknowledgment of a divine goodness.

However, what most people do not realize is that eight of the states also include a religious component to a citizen’s eligibility to hold public office and, in two cases, to testify in court or serve on a jury. These states include Arkansas, Maryland, Mississippi, Pennsylvania, Texas, Tennessee, North Carolina and South Carolina. While the language of each state’s “religious test” is slightly different, the ultimate idea is the same. In all cases, the laws exclude the Atheist from participating in officials roles. Beyond that and depending on one’s beliefs, these constitutional regulations could potentially exclude many citizens of minority faiths, including Pagans and Heathens.

[Photo Credit:  roberthuffstutter/Flickr]

[Photo Credit: roberthuffstutter/Flickr]

The states of North Carolina, Maryland and Tennessee use language that most closely connotes a Christian or an Abrahamic religious worldview. Maryland’s constitution reads, “no religious test shall ever be required” to hold office, “other than a declaration of belief in the existence of God.” The other two constitutions state that persons who “deny the being of God,” or “Almighty God,” as termed in North Carolina, are ineligible for public office. Tennessee goes a step further saying, “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.” A “future state of rewards and punishments” refers to heaven and hell.

In four states, the constitutional restrictions are worded with a more expansive concept of deity. In South Carolina, Texas and Mississippi, persons are ineligible for public office if they “refuse to acknowledge” or “deny the existence of” a Supreme Being. In Arkansas, the limitation is imposed on people who deny the “being of a God.” In all four cases, the language used allows for a broader interpretation of deity and, ostensibly, could include some Pagans and Heathens.

Pennsylvania‘s constitution deviates from the other documents in that it reverses the burden. It states:

No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth.

In this case, the state does not explicitly exclude persons who deny “a God.” However, it does imply that it could potentially happen. An acknowledgment of the “being of a God” and a heaven and hell secure one’s ability to be appointed. In that sense, the statement is a legal warning or even a compelling suggestion.

Additionally, two states include a religious test for jurors and those testifying in court. In Maryland and Arkansas, the constitution prohibits any persons who deny “the existence of God,” in Maryland, or “the being of a God,” in Arkansas, from testifying in court or serving on a jury.

While all of this may be frustrating and troublesome, the reality is much less bleak than at first glance. In Article 6, the United States Constitution clearly states:

no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States

Additionally, the 14th Amendment states:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In 1961, a Maryland Atheist challenged the “religious test” requirement after being excused from his appointment as a notary public.The famous case, Torcaso v Watkins, worked its way through the courts and eventually landed at the Supreme Court of the United States. The justices ruled in favor of Torcaso stating, “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 14th Amendment from infringement by the States.”

The 1961 Supreme Court ruling rendered the state religious tests unenforceable. However, the constitutions were never changed. Fifty-three years later, Maryland’s Declaration of Rights still makes the following statements:

Art 36 … nor shall any person, otherwise competent, be deemed incompetent as a witness, or juror, on account of his religious belief; provided, he believes in the existence of God, and that under His dispensation such person will be held morally accountable for his acts, and be rewarded or punished therefor either in this world or in the world to come.

 Art. 37. 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; nor shall the Legislature prescribe any other oath of office than the oath prescribed by this Constitution.

Much of this language appears to be legal “left-overs” and wording from the original state constitutions; some of which were adopted prior to ratification of the U.S. Constitution (1787) and the Bill of Rights (1791). In fact, some states, such as Arkansas, still disqualify people from serving in public office if they have have engaged in a duel. This evolutionary editing process may explain, in part, the oddities and religious language still found in many of the constitutions

"Hamilton-burr-duel" by Illustrator not identified. From a painting by J. Mund. - Lord, John, LL.D. (1902). Beacon Lights of History. Vol. XI, "American Founders." (London: James Clarke and Co Ltd. Republished as a Project Gutenberg eBook, 2004-01-08. eBbook no. 10644.. Licensed under Public domain via Wikimedia Commons - http://commons.wikimedia.org/wiki/File:Hamilton-burr-duel.jpg#mediaviewer/File:Hamilton-burr-duel.jpg

“Hamilton-burr-duel” by Illustrator not identified. From a painting by J. Mund. – Lord, John, LL.D. (1902). Beacon Lights of History. Vol. XI, “American Founders.” (London: James Clarke and Co Ltd. Republished as a Project Gutenberg eBook, 2004-01-08. eBbook no. 10644..[Public domain via Wikimedia]

As Pagan lawyer Dana Eilers points out in her book Pagans and Law, there is a common misconception that America was colonized to grant religious freedom to all minority faiths. Unfortunately, the difficult reality is that our country was filled with much religious intolerance, exclusivity and violence. Eilers says, “Given the dark and barbaric miasma of our past, the enormity of the American experience in separating religion and government represents a landmark event in human history.” In this statement, she not only refers to American history, but also to world history. (Chp. 8, God and Government)

Eilers then quotes a Supreme Court statement saying, “The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects … They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man’s relation to his God was made no concern of the state.” (Chp. 8, God and Government)  While Founding Father Thomas Jefferson may have mentioned the Muslim, Jew, Hindu, pagan and Christian in his work, other early lawmakers may not have been as progressively aware.

During that early period, the use of the word “God” or “a God” or “Supreme Being” may have seemed inclusive enough to satisfy the new American concept of religious diversity. For example, Maryland’s original 1776 constitution required a person interested in public service to declare “a belief in the Christian religion.” This was later changed to “God” in 1851 in order to be more inclusive by contemporary cultural standards.

While these historical details do explain why religious language, like “in the year of our Lord,” appears sporadically in state constitutions, it does not explain how 8 state constitutions have maintained a religious test to qualify someone for public office. Regardless of the historical aspect, such a test has been unconstitutional for centuries.  How, in the early revisions of the state constitutions, did those religious tests survive? How have they been overlooked all these years? More importantly, how have they remained unchecked since the 1961 Torcaso case or more recent legal contests?

Eilers explains, “they need to be tested individually…that is … each of them must be challenged.” Furthermore, each state has to be willing to engage in its process to change the constitution, a task that is long and difficult. That has yet to happen.

 

 

[Author’s Note: Special thanks to Pagan lawyer Dana Eilers for taking time to offer insight and expertise on the subject.]

Heather Greene

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Heather is a freelance writer, film historian, and journalist, living in the Deep South. She has collaborated with Lady Liberty League on religious liberty cases, and formerly served as Public Information Officer for Dogwood Local Council and Covenant of the Goddess. She has a masters degree in Film Theory, Criticism and History from Emory University with a background in the performing and visual arts. Heather's book on witches in American film and television will be published by McFarland in 2018.