Today in 1961: SCOTUS bars compulsory professions of a belief in God for public officeholders

June 19, 2015

Today in Legal HistoryFifty-four years ago today, on June 19, 1961, the Supreme Court ruled in its landmark Torcaso v. Watkins decision that states may not compel those seeking public office to profess a belief in the existence of God.

The case began when Roy Torcaso was asked to become a notary public by his employer.  After being appointed as such by the governor, Torcaso went to the clerk’s office to get his commission, the clerk requested that he take an oath and declaration:

“I, Roy R. Torcaso, do declare that I believe in the existence of God.”

Under the Maryland State Constitution, the oath was required for all persons elected or appointed to “any office of profit or trust, under this Constitution, or under the Laws, made pursuant thereto.”

Torcaso refused to take the oath, and was thus refused his commission.  He then brought a mandamus proceeding seeking to force the state of Maryland to issue his commission, arguing that Maryland’s requirement that he declare a belief in God violated the First and Fourteenth Amendments to the U.S. Constitution.

The Maryland Circuit Court denied Torcaso’s mandamus petition.  On appeal to the Maryland Court of Appeals, the highest court in the state, Torcaso’s petition was once again denied.  The Court of Appeals held that the law did not run afoul of the First Amendment since Torcaso was not being compelled to hold public office, he therefore was not being compelled by the state to make the oath.

The Court of Appeals further explained the reason why this oath is necessary: “An oath, predicated upon a belief in God, is a regular incident of judicial proceedings.”  According to the court, someone who denies the existence of God such as an atheist is “incompetent as a witness,” seemingly for the reason previously mentioned.  In fact, the court explicitly noted that a person convicted upon “the testimony of an atheist, would be deprived of due process.”

Torcaso appealed to the U.S. Supreme Court, which unanimously sided with him.  The Court held that, under its 1947 ruling Everson v. Board of Education, the First Amendment prohibits the states and the federal government from, among other things, forcing individuals “to profess a belief or disbelief in any religion.”  Further, Everson held that “[n]o person can be punished for entertaining or professing religious beliefs or disbeliefs.”

Interestingly, the Court did not base any part of its ruling on the “No Religious Test Clause” found in Article VI, paragraph 3 of the U.S. Constitution, which explicitly prohibits religious tests as a requirement “to any office or public trust under the United States.”  The Court had never extended this clause to apply to the states, and declined to do so in Torcaso because the case could be decided solely on First Amendment grounds.  Considering the Court’s First Amendment rationale in the ruling, states are effectively barred from imposing religious tests under the First Amendment, so extending the No Religious Test Clause to the states would be largely superfluous.

However, it’s quite unlikely that a case challenging the imposition of religious tests – presumably Christian in nature – would ever find its way to the Supreme Court nowadays, since the majority of today’s religious freedom lawsuits, specifically those related to the same-sex marriage, are brought by Christians – the nation’s dominant religion – claiming oppression from backers of same-sex marriage rights.

In this way, Torcaso is historically striking as an era where those claiming to be religiously oppressed were those not in the majority.