RE: ACLU sues over court oaths

[Ed Darrell]

My reading would be the other way -- the Article VI language omits nothing, but specifically notes that it covers any office or public trust under the United States.  Since the states are under the United States as well (don't forget the Supremacy Clause), I have always thought it clear that this language meant to include all state office holders as well.  While it has never been tested, and to the best of my searching it was never close to a test before Torcaso, the trends certainly followed that intent.  I can also not find any instant of a person's being denied an office because of religion under an operation of law.  Dumas Malone makes the point that fully half the electorate thought Jefferson to be atheist when they elected him in 1800; that's a federal office, sure, but I would have expected a challenge to electors or others down the ticket, had people seriously thought that religion or lack of it should have be! en a real disqualifier.  It may well be that the views expressed in Article VI were so much a part of the fabric of the nation that the language and the law were rather superfluous.

 

There are a few exceptions.  Maryland law was believed to ban Jews from holding office, and sometime in the 1820s the law was modified.  I can't find any record of anyone challenging the law, and considering that it was changed to comport with the ideas in Article VI, it's difficult to argue that anyone felt strongly otherwise, I think.  We're rather stuck wondering what they might have meant, since no one challenged them at the time.

 

By the way, I just spent a vigorous and enjoyable six days with Pepperdine's effusive Prof. Gordon Lloyd in Montana, deeply poring over Adam Smith, John Locke, John Stuart Mill, Herbert Hoover, FDR, Hayek, Friedman, Galbraith and Harrington.  He's with the public policy school -- had he existed at George Washington when I was working on my law degree, I hope I'd have had the sense to try to shoehorn one of his classes into my schedule.  My respect for Pepperdine rose.

 

Ed Darrell

Dallas

"Scarberry, Mark" <[EMAIL PROTECTED]> wrote:

I think it is not correct to say that the no religious test provision of Article VI applies in any direct way to state courts. Article VI requires an oath or affirmation of support for the Constitution from all state and federal office holders. But the no religious test provision refers only to "any Office or public Trust under the United States;" it prominently omits reference to offices or public trusts under the state governments. Of course the First Amendment as incorporated through the 14^th against the states should provide similar protection against religious tests for state office. It is interesting, though, that the Court! in Torcaso said (in a footnote):

 

"Appellant also claimed that the State's test oath requirement violates the provision of Art. VI of the Federal Constitution that 'no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.' Because we are reversing the judgment on other grounds, we find it unnecessary to consider appellant's contention that this provision applies to state as well as federal offices." 367 US at 489 n.1.

 

Mark S. Scarberry

Pepperdine University School of Law

 

-----Original Message-----
From: Gene Garman [mailto:[EMAIL PROTECTED]
Sent: Thursday, July 28, 2005 11:27 AM
To: Law & Religion issues for Law Academics
Subject: Re: ACLU sues over court oaths

 

Thank you for the question.

Oath or affirmation is obviously required by Art. 6., and its prohibition of a "religious" test applies to state courts, as well as all levels of government. Along with the Fourteenth Amendment's application of the First Amendment, all of of the Constitution's religion commandments illustrate the constitutional principle involved.

There is no conflict in application between Art. 6. and the First Amendment. Both relate to "religion." Religion is not the business of government, except in application of laws which apply to all citizens equally, regardless of religion.

All of the Constitution's religion commandments are in regard to the constitutional relationship established between religion and government in the United States and are designed to curb the coercive power of government in respect to "religion." It is n! ot the oath which is prohibited, it is the injection of "religion" into any government proceeding. In America it is not "religion" which is prohibited, it is establishment of "religion" by law or government at any level. Government is the essence of coercion. In America religion is to be voluntary. Both Art. 6. and the Establishment Clause apply to oaths or any other application of government established or imposed "religion."

As James Madison, Jr., who helped write both Art. 6. and the First Amendment, stated the constitutional principle when he wrote: "Strongly guarded ... is the separation between Religion and Government in the Constitution of the United States" (William and Mary Quarterly, 3:555).

Therefore, all of the Constitution's religion commandments, without conflict, apply to the North Carolina law which injects "Holy Scriptures" into any ceremony for anything, including fulfilling the oath or affirmation requ! irement. The North Carolina law, in reference to "Holy Scriptures," should be ruled unconstitutional.


Gene Garman, M.Div.
America's Real Religion
www.americasrealreligion.org

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