367 U.S. 488 (1961), 373, Torcaso v. Watkins

Docket Nº:No. 373
Citation:367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982
Party Name:Torcaso v. Watkins
Case Date:June 19, 1961
Court:United States Supreme Court

Page 488

367 U.S. 488 (1961)

81 S.Ct. 1680, 6 L.Ed.2d 982




No. 373

United States Supreme Court

June 19, 1961

Argued April 24, 1961



Appellant was appointed by the Governor of Maryland to the office of Notary Public, but he was denied a commission because he would not declare his belief in God, as required by the Maryland Constitution. Claiming that this requirement violated his rights under the First and Fourteenth Amendments, he sued in a state court to compel issuance of his commission, but relief was denied. The State Court of Appeals affirmed, holding that the state constitutional provision is self-executing, without need for implementing legislation, and requires declaration of a belief in God as a qualification for office. Held: This Maryland test for public office cannot be enforced against appellant, because it unconstitutionally invades his freedom of belief and religion guaranteed by the First Amendment and protected by the Fourteenth Amendment from infringement by the States. Pp. 489-496.

223 Md. 49, 162 A.2d 438, reversed.

Page 489

BLACK, J., lead opinion

MR. JUSTICE BLACK delivered the opinion of the Court.

Article 37 of the Declaration of Rights of the Maryland Constitution provides:

[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. . . .

The appellant Torcaso was appointed to the office of Notary Public by the Governor of Maryland, but was refused a commission to serve because he would not declare his belief in God. He then brought this action in a Maryland Circuit Court to compel issuance of his commission, charging that the State's requirement that he declare this belief violated "the First and Fourteenth Amendments to the Constitution of the United States. . . ."1 The Circuit Court rejected these federal constitutional contentions, and the [81 S.Ct. 1681] highest court of the State, the Court of Appeals, affirmed,2 holding that the state constitutional provision is self-executing, and requires declaration of belief in God as a qualification for office without need for implementing legislation. The case is therefore properly here on appeal under 28 U.S.C. § 1257(2).

There is, and can be, no dispute about the purpose or effect of the Maryland Declaration of Rights requirement before us -- it sets up a religious test which was designed to,

Page 490

and, if valid, does, bar every person who refuses to declare a belief in God from holding a public "office of profit or trust" in Maryland. The power and authority of the State of Maryland thus is put on the side of one particular sort of believers -- those who are willing to say they believe in "the existence of God." It is true that there is much historical precedent for such laws. Indeed, it was largely to escape religious test oaths and declarations that a great many of the early colonists left Europe and came here hoping to worship in their own way. It soon developed, however, that many of those who had fled to escape religious test oaths turned out to be perfectly willing, when they had the power to do so, to force dissenters from their faith to take test oaths in conformity with that faith. This brought on a host of laws in the New Colonies imposing burdens and disabilities of various kinds upon varied beliefs depending largely upon what group happened to be politically strong enough to legislate in favor of its own beliefs. The effect of all this was the formal or practical "establishment" of particular religious faiths in most of the Colonies, with consequent burdens imposed on the free exercise of the faiths of nonfavored believers.3

There were, however, wise and farseeing men in the Colonies -- too many to mention -- who spoke out against test oaths and all the philosophy of intolerance behind them. One of these, it so happens, was George Calvert (the first Lord Baltimore), who took a most important part in the original establishment of the Colony of Maryland. He was a Catholic and had, for this reason, felt compelled by his conscience to refuse to take the Oath of Supremacy in England at the cost of resigning from high governmental office. He again refused to take that oath when it was demanded by the Council of the Colony of

Page 491

Virginia, and, as a result, he was denied settlement in that Colony.4 A recent historian of the early period of Maryland's life has said that it was Calvert's hope and purpose to establish in Maryland a colonial government free from the religious persecutions [81 S.Ct. 1682] he had known -- one "securely beyond the reach of oaths. . . ."5

When our Constitution was adopted, the desire to put the people "securely beyond the reach" of religious test oaths brought about the inclusion in Article VI of that document of a provision that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Article VI supports the accuracy of our observation in Girouard v. United States, 328 U.S. 61, 69, that "[t]he test oath is abhorrent to our tradition." Not satisfied, however, with Article VI and other guarantees in the original Constitution, the First Congress proposed and the States very shortly thereafter

Page 492

adopted our Bill of Rights, including the First Amendment.6 That Amendment broke new constitutional ground in the protection it sought to afford to freedom of religion, speech, press, petition and assembly. Since prior cases in this Court have thoroughly explored and documented the history behind the First Amendment, the reasons for it, and the scope of the religious freedom it protects, we need not cover that ground again.7 What was said in our prior cases we think controls our decision here.

In Cantwell v. Connecticut, 310 U.S. 296, 303-304, we said:

The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states a incompetent as Congress to enact such laws. . . . Thus, the Amendment embraces two concepts -- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.

Later, we decided Everson v. Board of Education, 330 U.S. 1, and said this at pages 15 and 16:

The "establishment of religion" clause of the First Amendment means at least this: neither a state nor

Page 493

the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause [81 S.Ct. 1683] against establishment of religion by law was intended to erect "a wall of separation between church and State."


To continue reading