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Religious Tolerance logo

Religious laws and religious bigotry

Can Atheists be excluded from "an office or
public trust" in the U.S.? Two lawsuits

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bullet"...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 ["Mahometans" is an outdated term, now considered derogatory, for Muslims]


Article 6 of the U.S. Constitution states:

"No religious test shall ever be required as a qualification to any office or public trust under the United States."

The free exercise clause of the First Amendment to the Constitution states:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

The 14th Amendment to the Constitution, proclaimed adopted on 1868-JUL-21, states:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

The important feature of the 14th Amendment was that the banning of a religious test and the free exercise of religion which were formerly applied only to Congress became applicable also to the states.

However, many states had clauses in their Constitutions and Bills of Rights that required religious tests for political candidates, for witnesses and jurors at criminal trials, and for employment in the civil service.

The conflict between the religiously restrictive policies of the states and the elimination of such policies by the U.S. constitution was settled in favor of religious freedom by the U.S. Supreme court in a 1961 case Torcaso v Watkins.

Unfortunately, many states still have bigoted, religiously discriminatory clauses remaining in their Constitution and/or Bills of Rights. Although they are now null and void, they still hang about in these states' founding documents and teach modern-day citizens that Atheists and non-Judeo Christians should be considered second-class citizens.

Since the repeal of these clauses would require the majority vote of the states' citizens, they will probably remain in place for decades to come.

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'." 1

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:

bulletThe 1st Amendment guarantees freedom of religion, and
bulletArticle VI, section 3 states in part: "... no religious test shall ever be required as a qualification to any office or public trust under the United States," and
bulletThe 14th Amendment makes certain provisions of the Federal Constitution binding on the individual states. 

He lost. 2 He appealed to the State Court of Appeals 3 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 summed up their decision in one elegant sentence:

"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 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."

Before being too critical of the state in making such an outrageous case, it must be remembered that is their lawyers' duty to uphold their state constitution no matter how biased, disgusting and bigoted it is.

Mr. Justice Black wrote for all the court justices. In our opinion, this should be part of the curricula of every high school in the U.S.:

"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 [Federal] 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'....."

In Cantwell v. Connecticut, 310 U.S. 296, 303 -304, we said:

"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." 2

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.

Unfortunately, the culture is not keeping up with the Supreme Court's judicial decrees. Surveys show that a non-theist has essentially no chance of ever being elected to office in the U.S.

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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." 2

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.

A South Carolina Supreme Court ruling -- Herb Silverman v. Gov. Carroll A. Campbell -- 1997:

The precedent established by the U.S. Supreme Court ruling in 1961 was insufficient to prevent Herb Silverman from having problems in 1992. He also was denied certification as a Notary Public because he was an Atheist. He had crossed out the part of an oath that said: "so help me God." Carroll A. Campbell, Jr. and Jim Miles -- then Governor and Secretary of State of South Carolina -- both rejected his application.

The ACLU of South Carolina filed a lawsuit in 1993 on Silverman's behalf. ACLU lawyer, Edmund Robinson, said: "Of 30,000 applications for notary public, this is the only one that is from a devout atheist and the only one that has been denied."

State attorney Brad Waring said that Silverman's application was rejected because it lacked the correct number of signatures, and because he had crossed-out the word "God" from the constitutionally required oath of office. He said:

"If the word protect, preserve or defend had been struck from the application, the result would have been exactly the same. There was no religious discrimination in this case, and there was no evidence presented of it."

In 1995, Fifth Circuit Judge Thomas L. Hughston, Jr. ruled that the state laws requiring officeholders to sign an oath affirming the existence of a deity were unconstitutional. He wrote: "The state cannot require any religious belief including a call for 'God's help' as a requirement for appointment to office."

Gov. David Beasley (R), a born-again Christian, appealed the ruling. Silverman won at the state Supreme Court with a unanimous decision in 1997. The court ruled that Silverman's First Amendment rights were violated. Silverman said:

"I couldn't resist pointing out that the state considered me qualified to be a professor of mathematics at a public institution (the College of Charleston) but deemed me lacking enough ethical and moral standards for the office of notary public." 5,6,7

One would expect that a U.S. Supreme Court unanimous ruling and a South Carolina Supreme Court unanimous ruling would settle the matter. However, there still remain a handful of states that have clauses in their constitutions requiring belief in God still on the books waiting to be implemented and challenged in court.


The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Austin Cline, "Torcaso v. Watking (1961): Supreme Court decisions on religious liberty," About.com, at: http://atheism.about.com/
  2. "U.S. Supreme Court, Torcaso v. Watkins, 367 U.S. 488 (1961), 367 U.S. 488," FindLaw, at: http://caselaw.lp.findlaw.com/
  3. Article 37 of Maryland's Declaration of Rights, 223 Md. 49, 162 A. 2d 438, is at: http://www.msa.md.gov/
  4. U.S. Supreme Court Cantwell v. Connecticut, 310 U.S. 296, 303-304 is at: http://caselaw.lp.findlaw.com/
  5. "South Carolina Supreme Court; Okays Atheists for Public Office," Positive Atheism, at: http://www.positiveatheism.org/
  6. Austin Cline, "Profile of Herb Silverman," About.com, 2003-JUL-11, at: http://atheism.about.com/
  7. Herb Silverman v. Gov. Carroll A. Campbell and Secretary of State Jim Miles, Order 94-CP-40-3594, dated 1995-AUG-02.

Copyright © 2000 to 2009 by Ontario Consultants on Religious Tolerance
Last update: 2009-DEC-15
Editor: B.A. Robinson.

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