Torcaso v. Watkins, 367 U.S. 488 (1961)

Although Article VI of the U.S. Constitution provides that ‘‘no religious Test shall ever be required’’ for federal office-holding, individual states were not initially prohibited from maintaining religious tests (or professions of faith) as prerequisites to state office. Indeed, in the very early years of the Republic most states required some type of religious test. While the propriety of religious tests was contested and their prevalence eventually waned, many states retained religious tests—even if merely requiring the profession of a ‘‘belief in God’’—well into the twentieth century. In Torcaso v. Watkins, the U.S. Supreme Court struck down all such state religious tests as unconstitutional under the First Amendment.

After the governor of Maryland appointed Roy Torcaso to the office of notary public, Torcaso went to the county clerk’s office to receive his commission. The clerk requested that he take an oath and subscribe to a declaration of his belief in God, as required by Article 37 of the Declaration of Rights of the Maryland Constitution (‘‘[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’’). Torcaso declined to do so, and the clerk therefore refused to issue the commission. Seeking to obtain his commission, Torcaso petitioned for mandamus in Maryland state court against Clayton K. Watkins, clerk of the circuit court for Montgomery County, Maryland. After the Maryland courts refused to find Article 37 in violation of the state or federal constitutions, Torcaso appealed to the U.S. Supreme Court. In an opinion by Justice Black, the Court reversed and remanded.

Eliding the issue of whether Article VI applied to state as well as federal offices, the Court held that Maryland’s religious test violated ‘‘the First and Fourteenth Amendments to the Constitution of the United States.’’ Before reaching that conclusion, the Court noted the historical pedigree of religious tests (carried from Europe to the American colonial experience) and also the movement in American law to abolish such tests. On a federal level, Article VI secured the goal of putting people ‘‘securely beyond the reach’’ of religious test oaths, and the First Amendment then provided additional religious freedom. Cantwell v. Connecticut (310 U.S. 296, 1940) and Everson v. Board of Education (330 U.S. 1, 1947) made the First Amendment’s free exercise clause and establishment clause applicable to the states via the Fourteenth Amendment, extending the religious freedom embodied there to state as well as federal government.

The Supreme Court rejected the view of the state courts that Maryland’s religious test could stand because Zorach v. Clauson (343 U.S. 306, 1952) had tempered Everson. Instead, the Court held that Zorach did not ‘‘intend to open up the way for government ... to restore the historically and constitutionally discredited policy of probing religious beliefs by test oaths’’ or limiting public office to individuals with a particular type of religious belief. The Torcaso Court thus held that ‘‘neither a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion.’’’ The Court then pushed this neutrality principle even farther, stating that government could not pass laws favoring religion over nonreligion or favoring theistic religions over nontheistic religions. (This latter statement led to a famous footnote in which the Court stated that ‘‘Buddhism, Taoism, Ethical Culture, Secular Humanism, and others’’ would qualify as ‘‘religions’’ that do not teach about an existence of God.) Applying this neutrality and lack of favoritism to the case at hand, the Court quickly dispensed with the argument that Torcaso was not harmed by Maryland’s religious test because he was not compelled to hold office; the Court countered that a lack of compulsion was no excuse for barring Torcaso by state-imposed, constitutionally impermissible criteria.

Torcaso did not state which part of the religion clause was violated by the Maryland statute, leaving it open to varying later interpretations. But it is likely best viewed as an establishment clause case, given its statements about the government’s inability to set up religious criteria for office holding and its approving quotation that ‘‘complete separation between the state and religion is best for the state and best for religion’’ (quoting a concurrence in McCollum v. Maryland, 333 U.S. 203, 1948). The principle of governmental neutrality among religions and between religion and nonreligion stated in Torcaso would later provide support for a number of other Supreme Court opinions, some of which were seen as favorable to religion and some of which were seen as hostile to religion.

JOEL A. NICHOLS

References and Further Reading

  • Curry, Thomas J. The First Freedoms: Church and State in America to the Passage of the First Amendment. New York: Oxford University Press, 1986.
  • Witte, John, Jr., Religion and the American Constitutional Experiment. 2nd ed. Westview (2005).

Cases and Statutes Cited

  • Cantwell v. Connecticut, 310 U.S. 296 (1940)
  • Everson v. Board of Education, 330 U.S. 1 (1947)
  • McCollum v. Board of Education, 333 U.S. 203 (1948)
  • Zorach v. Clauson, 343 U.S. 306 (1952)

See also Cantwell v. Connecticut, 310 U.S. 296 (1940); Establishment of Religion and Free Exercise Clause; Everson v. Board of Education, 330 U.S. 1 (1947); Incorporation Doctrine; Nonpreferentialism; Test Oath Cases; Zorach v. Clauson, 343 U.S. 306 (1952)

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