Religious discrimination in U.S. State Constutions
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Quotation:
"...It 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?" James Iredell,
during the debate on the adoption of the Federal Constitution by the North
Carolina Convention. ["Mahometans" is an outdated term, now considered
derogatory, for Muslims]
Overview:
The Bill of Rights of the Texas Constitution (Article I, Section 4)
allows people to be excluded from holding office on religious grounds. An
official may be "excluded from
holding office" if she/he does not "acknowledge
the existence of a Supreme Being."
This would specifically exclude all Atheists and Agnostics
from holding public office.
It would also exclude:
Most Buddhists, who do not believe in a
personal deity.
Some followers of the New Age who do not
believe in the existence of a personal deity.
However, Wiccans
and Zoroastrians are acceptable, as they
believe in two deities -- twice as many as the minimum that Section 4 requires. Hindus would also be
good enough because they generally acknowledge the existence of millions of deities. The
number, gender, shape, size and other attributes do not matter, as long as you
believe that a Supreme Being of some sort exists.
This form of religious
intolerance is not limited to Texas. Seven other states (AR, MA, MD, NC, PA, SC and TN) all have similar
exclusionary language included in their Bill of Rights,Declaration of Rights,
or in the body of their constitutions.
In a few states whose constitutions include the
text of the oath of office, the candidate must swear an oath to
God. Such an oath would
prevent ethical non-theists from taking office. Of course, non-ethical
non-theists would have no problems with such an oath.
However, now that these Constitutions
include discriminatory and intolerant language, the states are probably stuck
with it. The passages will forever affirm that people who follow some minority
religions were considered unreliable second- class citizens of questionable morality
-- at least at the
time that the state constitutions were written. They could only be removed through
constitutional change; this requires at least a majority vote of the citizens of
the state. With the present political leadership and religious
climate towards non-theists in many of these states, this is simply not going to happen.
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Religious discrimination in state constitutions:
We have highlighted the most important sentences in the following articles and sections:
Arkansas Constitution, Article 19 Section 1 of the 1874 constitution: "No person who denies the being of a God shall hold any office in the
civil departments of this State, nor be competent to testify as a witness in
any court."
Comments: This clause denies human rights only to those who actively
deny the existence of a God. This would appear to grant Agnostics and some
Atheists full human rights, while excluding them from
strong Atheists.
Maryland's Bill of Rights:
Article 36: "That as it is the duty of every man to worship God in such
manner as he thinks most acceptable to Him, all persons are equally entitled to
protection in their religious liberty; wherefore, no person ought by any law to
be molested in his person or estate, on account of his religious persuasion, or
profession, or for his religious practice, unless, under the color of religion,
he shall disturb the good order, peace or safety of the State, or shall infringe
the laws of morality, or injure others in their natural, civil or religious
rights; nor ought any person to be compelled to frequent, or maintain, or
contribute, unless on contract, to maintain, any place of worship, or any
ministry; 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 therefore either in
this world or in the world to come." 7
Comments: In this state, a juror or witness might be considered
incompetent if they do not believe in the existence of God. Although
humans worship many Gods, the Article does not specify which one is
being referred to; presumably it is the Judeo-Christian deity. Not
only must a person believe in such a deity, but they must apparently
believe in a Heaven and a Hell, and perhaps
in Purgatory.
Article 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."
Comment: This section permits the government to limit
politicians, government employees, and others to Theists. It is again
unclear whether belief in any God is sufficient. Belief in a Goddess, or
a non-Judeo-Christian deity may not be acceptable. The Constitution is
ambiguous.
Massachusetts' Declaration of Rights:
Article III: "As the happiness of a people, and
the good order and preservation of civil government, essentially depend upon
piety, religion and morality; and as these cannot be generally diffused through
a community, but by the institution of the public worship of God, and of public
instructions in piety, religion and morality: Therefore, to promote their
happiness and to secure the good order and preservation of their government, the
people of this commonwealth have a right to invest their legislature with power
to authorize and require, and the legislature shall, from time to time,
authorize and require, the several towns, parishes, precincts, and other bodies
politic, or religious societies, to make suitable provision, at their own
expense, for the institution of the public worship of God, and for the support
and maintenance of public Protestant teachers of piety, religion and morality,
in all cases where such provision shall not be made voluntarily."
Comments: The constitution allowed individual municipal bodies
to tax everyone (Anglicans, Catholics, Jews, Muslims, Pagans,
Protestants, non-believers, etc.) in order to maintain Protestant
clergy. Fortunately, Article III is no longer in effect. In 1833, Article XI of
the Articles of Amendment replaced Article III.
Article:
"...every
denomination of Christians, demeaning themselves peaceably, and as good subjects
of the commonwealth, shall be equally under the protection of the law: and no
subordination of any one sect or denomination to another shall ever be
established by law."
Comments:All Christian denominations are
considered of equal status, and are to be equally protected under
the law. Non-Christian groups appear to be left out in the cold.
North Carolina's Constitution, Article 6 Sec. 8: "Disqualifications of office.
The following persons shall be disqualified for office: First, any person who
shall deny the being of Almighty God...."
Comments: "Almighty God" apparently refers to
the Judeo-Christian God. This Section would appear to disqualify
anyone who is not a Christian or Jew from holding office in the State.
Pennsylvania a Declaration of Rights: Article 1, Section 4: "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."
Comments: Apparently anyone who denies the existence of God OR
who denies the existence of heaven and hell can be held ineligible to
hold office or be a member of the PA civil service.
South Carolina's Constitution, Article 4 Section 2:
"Person denying existence of Supreme Being not to hold office.
No
person who denies the existence of the Supreme Being shall hold any office
under this Constitution."
Comments: "The Supreme Being" apparently
refers specifically to the Judeo-Christian God. This Section would
appear to disqualify anyone who is not a Christian or Jew from holding
office in the State.
Tennessee's Bill of Rights: Article 9:
Section 4: "That no political or religious test, other than an oath
to support the Constitution of the United States and of this state, shall ever
be required as a qualification to any office or public trust under this state."
Section 2. "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."
Comments: Section 4 says that there is to be no
religious test. Section 2 is that there is a religious test. Nobody
who denies God or heaven or hell can hold office.
Texas' Bill of Rights Section 4:
"RELIGIOUS TESTS: No religious test shall ever be required
as a qualification to any office, or public trust, in this State; nor shall any
one be excluded from holding office on account of his religious sentiments,
provided he acknowledge the existence of a Supreme Being."
Comments: As noted above, only theists can hold office civil
servant in Texas.
Why these religious restrictions are no longer valid:
These phrases are historical
relics, left over from earlier times. The First Amendment of the U.S.
Constitution supersedes any applicable statutory laws and sections of state constitutions. It thus
nullifies the effect of the above clauses. This was confirmed by the U.S.
Supreme Court, as described below.
A U.S. Supreme Court case -- Torcaso v Watkins -- in 1961:
In the early 1960s, the Governor of Maryland appointed Roy Torcaso to be
a Notary Public. According to Atheism.About.com:
"When the time came for him to actually assume his
duties, he was denied his commission and had his appointment rescinded
because he refused to declare his belief in God."
"Article 37 of Maryland's Declaration of Rights
stated: '[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'." 3
Torcaso filed suit in state court because he felt the
test unfairly penalized him for his lack of belief in God. He argued that the
religious test had violated his rights under U.S. Constitution -- both:
The 1st
Amendment (which guarantees freedom of religion) and
The 14th Amendment
(which makes certain provisions of the Federal Constitution binding on the
individual states).
He lost. 4
He appealed to the State Court of Appeals5 and lost again. Finally, he won before the U.S. Supreme
Court. He had the support of the American Ethical Union and the American
Jewish Committee, who filed amici curiae ("friends of the court" briefs).
The court ruled unanimously in Torcaso's favor. Justice Black, writing for
the justices stated:
"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."
This ruling by the U.S. Supreme Court presumably makes all of the religious tests
for office in the various states listed above to be unconstitutional.
During the hearing before the Supreme Court, the state
tried to make the case that the religious test did not impinge on Torcaso's
religious freedom. They stated:
"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."
However, Mr. Justice Black ruled:
"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 [it] was designed to 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....."
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'....."
"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."
"The 'establishment of religion' clause of the First Amendment means at
least this: Neither a state nor 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.'....."
"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 and neither can aid those religions based on a belief in the
existence of God as against those religions founded on different beliefs."
4
The full ruling is well worth reading, It describes
the religiously oppressive culture in some of the early colonies, and the vital
importance of the separation of church and state in a religiously diverse
country. The U.S. may well be soon reverting back to a culture of religious
oppression similar to that found in the early colonies.
A footnote about a footnote:
Footnote 11 in
Justice Black's ruling states:
"Among the 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."
4
This footnote is often quoted by religious conservatives to prove that the
U.S. Supreme Court recognizes Secular Humanism as a religion. Some then
interpret this to mean that any teaching of Humanism in the school violates the
principle of separation of church and state. Since the vast majority of
Humanists believe in the theory of evolution of the
species, many religious conservatives conclude that the teaching of
evolution also violates this principle.
They appear to be unaware that footnotes in a court ruling have no force in
law. They are merely additional comments added by the author of the ruling.
