TORCASO v. WATKINS, CLERK.
APPEAL FROM THE COURT OF APPEALS OF MARYLAND.
Argued April 24, 1961.
Decided June 19, 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.
Leo Pfeffer and Lawrence Speiser argued the cause for appellant. With them on the briefs were Joseph A. Sickles, Carlton R. Sickles, Bruce N. Goldberg, Rowland Watts and George Kaufmann.
Thomas B. Finan, Attorney General of Maryland, and Joseph S. Kaufman, Deputy Attorney General, argued the cause and filed a brief for appellee. C. Ferdinand Sybert, former Attorney General of Maryland, and Stedman Prescott, Jr., former Deputy Attorney General, appeared with Mr. Kaufman on the motion to dismiss or affirm.
Briefs of amici curiae, urging reversal, were filed by Herbert A. Wolff and Leo Rosen for the American Ethical Union, and by Herbert B. Ehrmann, Lawrence Peirez, Isaac G. McNatt, Abraham Blumberg, Arnold Forster, Paul Hartman, Theodore Leskes, Edwin J. Lukas and Sol Rabkin for the American Jewish Committee et al. [367 U.S. 488, 489]
MR. JUSTICE BLACK delivered the opinion of the Court.
Article 37 of the Declaration of Rights of the Maryland Constitution provides:
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 [367 U.S. 488, 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 far-seeing 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 [367 U.S. 488, 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 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 [367 U.S. 488, 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:
We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion." Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, 10 and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs. 11
In upholding the State's religious test for public office the highest court of Maryland said:
This Maryland religious test for public office unconstitutionally invades the appellant's freedom of belief and religion and therefore cannot be enforced against him.
The judgment of the Court of Appeals of Maryland is accordingly reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
[ Footnote 2 ] 223 Md. 49, 162 A. 2d 438. Appellant's alternative contention that this test violates the Maryland Constitution also was rejected by the state courts.
[ Footnote 3 ] See, e. g., I Stokes, Church and State in the United States, 358-446. See also cases cited, note 7, infra.
[ Footnote 4 ] The letter from the Virginia Council to the King's Privy Council is quoted in Hanley, Their Rights and Liberties (Newman Press 1959), 65, as follows:
[ Footnote 5 ] Hanley, op. cit., supra, p. 65.
[ Footnote 6 ] "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
[ Footnote 7 ] See, e. g., the opinions of the Court and also the concurring and dissenting opinions in Reynolds v. United States, 98 U.S. 145 ; Davis v. Beason, 133 U.S. 333 ; Cantwell v. Connecticut, 310 U.S. 296 ; West Virginia State Bd. of Education v. Barnette, 319 U.S. 624 ; Fowler v. Rhode Island, 345 U.S. 67 ; Everson v. Board of Education, 330 U.S. 1 ; Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 ; McGowan v. Maryland, 366 U.S. 420 .
[ Footnote 8 ] 333 U.S., at 213 , 232. Later, in Zorach v. Clauson, 343 U.S. 306, 322 , MR. JUSTICE FRANKFURTER stated in dissent that "[t]he result in the McCollum case . . . was based on principles that received unanimous acceptance by this Court, barring only a single vote."
[ Footnote 9 ] In one of his famous letters of "a Landholder," published in December 1787, Oliver Ellsworth, a member of the Federal Constitutional Convention and later Chief Justice of this Court, included among his strong arguments against religious test oaths the following statement:
[ Footnote 10 ] In discussing Article VI in the debate of the North Carolina Convention on the adoption of the Federal Constitution, James Iredell, later a Justice of this Court, said:
[ Footnote 11 ] Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others. See Washington Ethical Society v. District of Columbia, 101 U.S. App. D.C. 371, 249 F.2d 127; Fellowship of Humanity v. County of Alameda, 153 Cal. App. 2d 673, 315 P.2d 394; II Encyclopaedia of the Social Sciences 293; 4 Encyclopaedia Britannica (1957 ed.) 325-327; 21 id., at 797; Archer, Faiths Men Live By (2d ed. revised by Purinton), 120-138, 254-313; 1961 World Almanac 695, 712; Year Book of American Churches for 1961, at 29, 47.