Can Atheists be excluded from "an office or
public trust" in the U.S.? Two lawsuits
"...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 ["Mahometans" is an outdated term, now considered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
"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
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:
Amendment guarantees freedom of religion, and
Article 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
The 14th Amendment
makes certain provisions of the Federal Constitution binding on the
He lost. 2 He appealed to the State Court of Appeals3
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."
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
"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."
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.
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
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
"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
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
"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.
Austin Cline, "Torcaso v. Watking (1961): Supreme Court decisions on religious liberty," About.com, at: