The Religious Test Clause

. . . no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

—Gerard V. Bradley

Introduction

The Constitution as ratified in 1788 contained one explicit reference to religion: Article VI bans religious tests for “any Office or public Trust under the United States.” Today this freedom from religious tests may seem to be obviously required by basic principles of religious liberty, but at the time of the Framing, states were free to impose religious tests as they saw fit—and they did. State tests generally limited public offices to Christians or, in some states, only to Protestants. Under the federal constitution, however, national offices were open to everyone, regardless of their faith. There are no judicial decisions construing the religious test ban despite an abundance of constitutional litigation over the boundary between church and state. This lack of precedent does not suggest that the clause has been ineffectual. On the contrary: It has produced its intended effect without the aid of judicial interpretation. Federal offices have been open to believers and non-believers of all stripes ever since the Founding. The Religious Test Clause has been a singular constitutional success.

History Before 1787

The British colonists who came to America brought with them a long history of legal discrimination against Roman Catholics. This tradition had roots in King Henry VIII’s marital meanderings and his establishment of the Anglican Church under the monarch’s supreme authority. The matter with Catholicism, then and thereafter, was more jurisdictional and about power than it was about doctrine or ceremony. According to historian Michael Breidenbach, “What made Catholicism so odious to early American Protestants was the pope’s claim (and Catholics’ apparent acceptance of it) that he had temporal authority over all civil rulers, including even the right to depose a secular authority.”¹ In fact, when Pope Pius V excommunicated Queen Elizabeth in 1570, he declared that “Catholics’ ultimate allegiance was to the pope, not to their temporal sovereign.”²

In the colonies, Maryland was an exception. Its proprietary founders, the Calverts, were themselves Catholic. But other states continued this bias against Catholics even after independence. The Massachusetts Constitution of 1780, for example, was reminiscent of the old English oath of supremacy. Candidates had to swear “that no foreign prince, person, prelate, state, or potentate hath, or ought to have, any jurisdiction, superiority, preeminence, authority, dispensing or other power, in any matter, civil, ecclesiastical, or spiritual, within this commonwealth.”³ This provision clearly applied to Catholics. In 1788, the New York legislature enacted a similar oath of abjuration for officeholders, although it stopped short of disenfranchising Catholics.⁴ The North Carolina Constitution of 1776 also included a religious test clause that extended to atheists, non-Protestants, non-Christians, and those who “hold religious principles incompatible with the freedom and safety of the State.”⁵

By the time of the Philadelphia Constitutional Convention, states did not discriminate among Protestant sects in eligibility for public stations. Catholics were clearly eligible in Pennsylvania, Delaware, and Maryland. In other states, only Protestants could hold office.⁶

The Constitutional Convention

On August 20, 1787, the Convention referred a series of proposals to the Committee of Detail.⁷ One of them stated that “[n]o religious test or qualification shall ever be annexed to any oath of office under the authority of the United States.”⁸ On August 30, Charles Pinckney of South Carolina proposed a revised text: “But no religious test shall ever be required as a qualification to any office or public trust under the authority of the United States.”⁹ Roger Sherman of Connecticut argued that the ban was “unnecessary” because “the prevailing liberality” provided “sufficient security” against restrictive tests, but Pinckney’s motion was approved.¹⁰ The Committee of Style later modified the scope of the clause: “office or public trust under the authority of the United States” was changed to “office or public trust under the United States.”¹¹

The Ratification Debates

Luther Martin of Maryland explained that the Religious Test Clause “was adopted by a great majority of the convention, and without much debate.”¹² The “prevailing liberality” was not, however, as prevailing as Sherman believed, and the clause was hotly disputed in some states during the ratification debates. The main objection was that “Jews,” “Turks,” “infidels,” “heathens,” and even “Roman Catholics” might hold national office under the proposed Constitution.¹³ The times were such that the force of this objection was for many both substantial and nearly self-evident.

Martin observed that some members of the Convention would have distinguished between “the professors of Christianity and downright infidelity or paganism.”¹⁴ A Friend to the Rights of the People, an Anti-Federalist from New Hampshire, criticized the ban on religious tests, warning that “we may have a Papist, a Mohomatan, a Deist, yea an Atheist at the helm of Government.”¹⁵ A Friend questioned whether it was “good policy to discard all religion” and concluded that “no man is fit to be a ruler of protestants, without he can honestly profess to be of the protestant religion.”¹⁶ David, an Anti-Federalist from Massachusetts, wrote that “Papists and Atheists” should be excluded from government: “The latter . . . have no principles of virtue, and the former . . . acknowledge a foreign head, who can relieve them from the obligation of an oath.”¹⁷

Pennsylvania’s Benjamin Rush expressed the more restrained view that “many pious people wish the name of the Supreme Being had been introduced somewhere in the new Constitution.”¹⁸ The Religious Test Clause was thus a focal point for reservations about the Constitution’s entirely secular language.

Some defenders of the Religious Test Clause responded that perhaps a belief in God and a future state of reward and punishment, notwithstanding the ban, could be required of federal officers.¹⁹ On this interpretation, Article VI would have ruled out specifically sectarian tests as well as (possibly) tests that excluded only non-Christians. Some defenders suggested that the constitutional requirement of an “oath” to support and defend the Constitution implied that officers had to affirm at least some tenets of natural religion.²⁰ It is true that the Constitution specified an alternative to swearing—namely, “affirm[ing]”—but this alternative did not rebut the relationship between an oath and religion. Swearing and affirming were alternative ways to make solemnly clear that one believed. Whether by “oath or affirmation,” some defenders of the Religious Test Clause maintained, certain beliefs about divine matters could and should be prerequisites for federal officeholders.

The plain meaning of the text imposed a clear prohibition on religious tests. This was surely the predominant understanding of the constitutional language. 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 of Connecticut 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.”²¹ Second, proponents also argued that the Constitution wisely declined to exclude some of the best minds and least parochial personalities to serve in the national government. In 1787, Tench Coxe of Pennsylvania, observed that “[t]he people may employ any wise or good citizen in the execution of the various duties of the government.”²²

To Whom Does the Religious Test Clause Apply?

By its terms, the ban extends to those who hold “any Office or public Trust under the United States.” Professors Seth Barrett Tillman and Josh Blackman write that this category includes all appointed and elected federal officeholders, including the President and members of Congress.²³ The text does not apply to state officeholders. However, the U.S. Supreme Court effectively eliminated the clause’s limitation to federal officeholders in Torcaso v. Watkins (1961).²⁴ The Justices declared unconstitutional a state-imposed religious test, relying on the Establishment and Free Exercise Clauses of the First Amendment. The holding effectively expanded the scope of the Religious Test Clause to ban even a required profession of belief in God by any public official, federal or state.

Open Questions

In Kennedy v. Bremerton School District (2022), the Supreme Court said that it had “abandoned” its oft-criticized Lemon test for Establishment Clause violations, substituting for it a “historical practices and understandings” test.²⁵ Any attempt to revisit the Torcaso holding would now raise a series of challenging questions. First, how much does the Free Exercise Clause, as opposed to the Establishment Clause, contribute to the holding in Torcaso? Second, does current Free Exercise doctrine support Torcaso? Third, the Justices would have to reckon with the two radically divergent “historical practices and understandings” at the Founding and for decades thereafter at the state and federal levels. Depending on how the Court answers these questions, the Justices might have to consider for the first time explicitly “incorporating” the No-Test Clause and then giving it (for the first time) an authoritative judicial interpretation.

1. Michael D. Breidenbach, Our Dear-Bought Liberty: Catholics and Religious Toleration in Early America 116 (2021). ↩︎
2. Id. at 10. ↩︎
3. Mass. Const. of 1780, ch. VI. ↩︎
4. John Webb Pratt, Religion, Politics, and Diversity: The Church–State Theme in New York History 107 (1967). ↩︎
5. N.C. Const. of 1776, art. XXXII; Seth Barrett Tillman, A Religious Test in America?: The 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat—A Re-Evaluation of the Primary Sources, 98 N.C. Hist. Rev. 1 (2021); Seth Barrett Tillman, What Oath (If Any) Did Jacob Henry Take in 1809?: Deconstructing the Historical Myths, 61 Am. J. L. Hist. 349 (2021). ↩︎
6. Gerard V. Bradley, The No Religious Test Clause and the Constitution of Religious Liberty: A Machine That Has Gone of Itself, 37 Case W. L. Rev. 674 (1987). ↩︎
7. 3 Farrand’s 340–41. ↩︎
8. 2 Farrand’s 335. ↩︎
9. 2 Farrand’s 461, 468. ↩︎
10. Id. at 468. ↩︎
11. Id. at 603; Peter K. Rofes, The Religion Guarantees: A Reference Guide to the United States Constitution 12 (2005). ↩︎
12. Storing 2.4.108. ↩︎
13. Storing 4.22.4. ↩︎
14. Storing 2.4.108. ↩︎
15. Storing 4.23.3. ↩︎
16. Id. ↩︎
17. Id. at 4.24.5 ↩︎
18. Letter from Benjamin Rush to John Adams (June 15, 1789), https://perma.cc/4FV4-T5N8. ↩︎
19. Bradley, supra at 696–97. ↩︎
20. Id. ↩︎
21. Essays on the Constitution of the United States 169 (Paul Leicester Ford ed., 1892). ↩︎
22. Pamphlets on the Constitution of the United States 146 (Paul Leicester Ford ed., 1888). ↩︎
23. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part I: An Introduction, 61 S. Tex. L. Rev. 309, 315 (2021). ↩︎
24. 367 U.S. 488 (1961). ↩︎
25. 597 U.S. 507 (2022). ↩︎