The No Religious Test Clause

The No Religious Test Clause provides a foundation for America’s constitutional commitment to religious liberty and equality. While limited in scope, the principles of freedom of conscience and anti-discrimination that animate it have developed and expanded over time. This has happened both in the case law interpreting the Free Exercise and Establishment Clause of the First Amendment and in the political sensibilities of the American people. The core message here is simple and basic. In this country, we do not bar members of minority faiths from holding political office or condition participation in public service on a person’s willingness to affirm religious teachings that may be foreign to his or her beliefs.

The No Religious Test Clause is also important because it informs our understanding of how courts should interpret the Constitution. Some scholars and jurists contend we should interpret constitutional provisions relating to religion by looking at the church-state interactions that were prevalent at the time the Constitution was drafted and ratified. Thus, it is argued, if government officials promoting religion through sectarian public prayers was generally accepted 220 years ago, then it is highly unlikely that the Establishment Clause of the First Amendment was intended to prohibit this practice.

As the history of the No Religious Test Clause demonstrates, this kind of an analysis has inherent difficulties. Sometimes what the Constitution requires challenges the accepted practices of the time. There was widespread acceptance of religious tests in the states at the time the Framers drafted Article VI. Surely, it makes little sense to contend that the No Religious Test Clause cannot prohibit religious tests—what its explicit language bans—because such tests were commonly imposed by states on office holders. Similarly, many states prohibited clergy from holding public office in the late 1700s. If the interpretation of the religion clauses of the First Amendment is frozen by what was acceptable to Americans at that time, then longstanding precedents like McDaniel v. Paty (1978), which held unconstitutional a Tennessee statute barring “Minister[s] of the Gospel or priest[s] of any denomination whatever” from serving as legislators, are wrongly decided.

One reason it is difficult to limit the meaning of constitutional provisions relating to religion by looking at accepted government activities in our early history is that the interpretation of the rest of the Constitution has not remained static. For example, from the 1780s to the 1950s, constitutional law distinguished between rights and privileges. Public service was a privilege, not a right. Accordingly, Americans could be barred from being police officers or holding other government positions because they criticized the government or expressed unpopular viewpoints. Freedom of speech did not protect individuals from being denied privileges such as a government position. Under this analysis, Americans in the late 1700s might plausibly think that religious tests for public office did not abridge anyone’s right to religious freedom. It simply limited their access to a privilege—holding public office—which no one had a right to possess.

Over the last 50 years, however, courts have consistently rejected this distinction between rights and privileges. In numerous decisions, courts held that Americans cannot be denied the opportunity to hold a public office or job because the government disapproves of the way they have exercised their fundamental rights, such as freedom of speech. In light of this new constitutional understanding, it no longer makes much sense to argue that religious tests do not burden the right to religious liberty. There are other reasons why early American history may not provide dispositive limits on constitutional doctrine relating to religious liberty and equality. Today, we have a much more robust understanding of both liberty and equality rights than we did in 1791. Freedom of speech and association are much more rigorously protected now than they were 200 years ago. Rights of privacy and autonomy such as the right to marry were not recognized as constitutional rights until recently. Until the adoption of the Fourteenth Amendment in 1868, the Equal Protection Clause, the primary vehicle for guaranteeing equality rights in the Constitution, was not part of the Constitution and the Bill of Rights was not yet applicable to the states. In a constitutional scheme in which so many other rights receive greater attention and respect, one may reasonably argue that religious liberty and equality rights must develop and evolve as well.

A final reason why religious tests and other forms of religious discrimination and favoritism are less acceptable today is that the religious demographics of the country have changed dramatically. Two hundred years ago, America was overwhelmingly a homogenous Protestant country. Preferences for Protestant beliefs included almost everyone who counted. (Native Americans and slaves did not count.) Excluded minorities were largely invisible to the majority. Today, the United States has much greater religious diversity. Millions of Catholics, Jews, Hindus, Moslems, Buddhists and members of other faiths live here as do millions of non-religious Americans. Religious tests and preferences do not unify our society today. They risk tearing it apart.

While the core meaning of the No Religious Test Clause has strong support today, there are difficult unanswered questions about the scope of this provision. Clearly, no one can be required to swear or affirm a religious belief as a condition to holding office. It is less certain whether individuals can be denied a government position on the grounds that their religious beliefs disqualify them from serving in a particular position. The idea that an individual should not be appointed to the Supreme Court because he is a Jew or she is a Catholic easily can be characterized as an impermissible religious disqualification for holding office. Is it unconstitutional, however, to refuse to appoint a religious pacifist to a leadership position in the Department of Defense or to reject a Supreme Court nominee because he is religiously opposed to abortion or same-sex marriage or holds strong religious beliefs on some other issue that will be adjudicated by the Court? When religious beliefs will influence official conduct, is it impermissible to consider religion in appointing government officials to office? These questions remain the subject of contemporary debate.

Modern interpreters give little attention to the No Religious Test Clause, but that is a shame. As Alan nicely points out in his commentary, the early history of oaths and religious tests offers useful case studies for thinking about shifts in constitutional meaning over the past two centuries. I’ll focus here on two constitutional provisions that intersect with the No Religious Test Clause: the First Amendment and the Oath Clause.

The First Amendment

The Supreme Court’s interpretation of the First Amendment in Torcaso v. Watkins (1961) effectively made superfluous the Article VI ban on religious tests. But that overlap was hardly apparent at the Founding.

First, consider the Establishment Clause. Even without the No Religious Test Clause, the Establishment Clause would have prohibited sectarian discrimination in office-holding requirements. But many Founders may not have viewed a non-sectarian religious test—a requirement of theism or Christianity, for instance—as a violation of the Establishment Clause. Most calls for federal disestablishment, after all, took the form of Virginia’s proposal that “no particular religious sect or society ought to be favored or established by Law in preference to others.” The idea of removing religion entirely from the public sphere was far more radical than simply banning sectarian discrimination.

Second, although the Free Exercise Clause certainly prohibited deprivations of so-called “natural rights” (like life, liberty, or property) based on someone’s religion, it may not have originally affected the availability of civil privileges like office-holding. As Massachusetts jurist Samuel Wilde put it in 1821, a religious test “does not interfere with the rights of conscience.—No person has any conscience about becoming a Legislator. He is not obliged to accept of office, and he has no right to claim it.” Indeed, as Alan and I point out in our joint statement, most state constitutions at the Founding simultaneously recognized the inalienable right of free exercise and imposed a non-sectarian religious test for office. The coexistence of these provisions highlights a distinction between natural rights and civil privileges that has blurred considerably in modern constitutional law.

In sum, the No Religious Test Clause imposed a constitutional restriction that was not necessarily implicit either in the Establishment Clause or in the Free Exercise Clause. Though uncontroversial today, the Supreme Court’s decision in Torcaso thus reflected a likely departure from the First Amendment’s original meaning.

The Oath Clause

A second way that the No Religious Test Clause exposes distance from our constitutional past is through the inherent religiosity of oath-taking at the Founding. An oath, as Oliver Wolcott explained to his colleagues in the Connecticut ratification convention, was “a direct appeal to that God who is the avenger of perjury” and was thus “a full acknowledgment of his being and providence.” The oath, in other words, was itself a religious instrument. (Moreover, affirmations were then available only to individuals, like Quakers, who had religious scruples against swearing.)

Consequently, by requiring all officers to take an oath, the Constitution implicitly created a non-sectarian religious hurdle for office-holding—albeit one that lacked any external enforcement mechanism. As James Madison asked rhetorically in a letter to Edmund Pendleton, “Is not a religious test as far as it is necessary, or would operate, involved in the oath itself?” Indeed, the inherent religiosity of oath-taking led South Carolina’s ratification convention to propose revising the No Religious Test Clause to say that “no other religious Test shall ever be required.” Roger Sherman of Connecticut commented that this proposal was “ingenious” but unnecessary because “as it now stands the effect will be the same.”

In modern law, by contrast, oaths are not necessarily religious, and affirmations are not reserved for religious objectors. To be sure, individuals can say “so help me God” at the end of their oaths if they choose, but oaths have lost their inherent religiosity, just as the term “marriage” has lost its previously inherent gendered meaning. Nobody today thinks twice about the validity of an oath taken by an atheist. In fact, it would violate the Supreme Court’s ruling in Torcaso to limit civic participation on the basis of religious disbelief. As so often happens, cultural shifts have profoundly affected the way that we read the Constitution.