CRS Annotated Constitution

First Amendment -- Table of ContentsPrev | Next

Religious Test Oaths.—However the Court has been divided in dealing with religiously–based conduct and governmental compulsion of action or nonaction, it was unanimous in voiding a state constitutional provision which required a notary public, as a condition of perfecting his appointment, to declare his belief in the existence of God. The First Amendment, considered with the religious oath provision of Article VI, makes it impossible “for government, state or federal, to restore the historically and constitutionally discredited policy of probing religious beliefs by test oaths or limiting public offices to persons who have, or perhaps more properly, profess to have, a belief in some particular kind of religious concept.”258

Religious Disqualification.—Unanimously, but with great differences of approach, the Court declared invalid a Tennessee statute barring ministers and priests from service in a specially called state constitutional convention.259 The Court’s decision necessarily implied that the constitutional provision on which the statute was based, barring ministers and priests from service as state legislators, was also invalid.


258 Torcaso v. Watkins, 367 U.S. 488, 494 (1961) .
259 McDaniel v. Paty, 435 U.S. 618 (1978) . The plurality opinion by Chief Justice Burger, joined by Justices Powell, Rehnquist, and Stevens, found the case governed by Sherbert v. Verner’s strict scrutiny test. The State had failed to show that its view of the dangers of clergy participation in the political process had any validity; Torcaso v. Watkins was distinguished because the State was acting on the status of being a clergyman rather than on one’s beliefs. Justice Brennan, joined by Justice Marshall, found Torcaso controlling because imposing a restriction upon one’s status as a religious person did penalize his religious belief, his freedom to profess or practice that belief. Id. at 629. Justice Stewart also found Torcaso dispositive, id. at 642, and Justice White found an equal protection violation because of the restraint upon seeking political office. Id. at 643.[p.1020]
First Amendment -- Table of ContentsPrev | Next