...no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.Article VI
The original, unamended Constitution contains one explicit reference to religion: the Article VI ban on religious tests for "any office or public trust under the United States." Despite much litigation over the constitutional border between church and state, there have been no judicial decisions involving the religious test ban. The clause has been entirely self-executing. We do not know whether the Framers intended the clause to apply to every federal officeholder, howsoever minor; but no federal official has ever been subjected to a formal religious test for holding office.
By its plain terms, the ban extended only to federal officeholders. States were free at the time of the Founding to impose religious tests as they saw fit. All of them did. State tests limited public offices to Christians or, in some states, only to Protestants. The national government, on the other hand, could not impose any religious test whatsoever. National offices were open to everyone.
The surviving accounts of the Constitutional Convention indicate that the Article VI ban "was adopted by a great majority of the convention, and without much debate." We know that North Carolina opposed the prohibition; the Connecticut and Maryland delegations were divided. All the other delegates were in favor. But even some "nay" votes were not necessarily in favor of religious tests. Connecticut's Roger Sherman, for example, thought the ban unnecessary, "the prevailing liberality" being sufficient security against restrictive tests.
Of course the "prevailing liberality" was not very liberal. The clause was hotly disputed in some states during the 1788–1789 struggle over ratification of the Constitution. The objection was simple: "Jews," "Turks," "infidels," "heathens," and even "Roman Catholics" might hold national office under the proposed Constitution. As more soberly expressed by Pennsylvanian Benjamin Rush: "many pious people wish the name of the Supreme Being had been introduced somewhere in the new Constitution." The Religious Test Clause was thus a focal point for reservations about the Constitution's entirely secular language.
Some defenders of the Constitution argued, in response, that a belief in God and a future state of reward and punishment could, notwithstanding the test ban, be required of public officers. On this interpretation, Article VI banned only sectarian tests, such as would exclude some Christians from office. Others asserted that the requirement that officers take an oath to support and defend the Constitution necessarily implied a religious commitment. (See Oaths Clause, Article VI, Clause 3.)
In the ratification debates, the defenders of the Constitution put forward two reasons for the religious test ban. First, various Christian sects feared that, if any test were permitted, one might be designed to their disadvantage. No single sect could hope to dominate national councils. But any sect could imagine itself the victim of a combination of the others. Oliver Ellsworth noted that if a religious oath "were in favour of either congregationalists, presbyterians, episcopalions, baptists, or quakers, it would incapacitate more than three-fourths of the American citizens for any publick office; and thus degrade them from the rank of freemen." More importantly, the Framers sought a structure that would not exclude some of the best minds and the least parochial personalities to serve the national government. In his 1787 pamphlet, "An Examination of the Constitution," Tench Coxe wrote of the salubriousness of the religious test ban: "The people may employ any wise or good citizen in the execution of the various duties of the government."
The limitation to federal officeholders was mooted by the Supreme Court in the 1961 case, Torcaso v. Watkins. Relying upon the First Amendment religion clauses, the Court struck down religious tests for any public office in the United States. Not even a simple profession of belief in God—as was required of Roy Torcaso, an aspiring notary public—may now be required. Torcaso thus totally eclipses the Religious Test Clause of Article VI. The scope of an individual's immunity from disqualification from office on religious bases now depends upon the meaning of the Establishment and Free Exercise of Religion Clauses, not upon Article VI. Because the First Amendment's breadth is as wide as all government activity, questions about the precise meaning of "office of public trust" are also moot. Whether the Religious Test Clause by itself extends to Members of Congress or all the way down to postal workers no longer matters—save perhaps to historians.
- Gerard V. Bradley
- Professor of Law
- Notre Dame Law School