No Religious Tests for Office

The subject of religious tests for office came up several times this past week in connection with the nomination of Amy Coney Barrett for the Supreme Court. 

You may recall that Illinois Senator Dick Durbin asked Barrett, “Do you consider yourself an orthodox Catholic?,” during her confirmation hearing for the Seventh Circuit Court of Appeals in 2017.  Senator Dianne Feinstein notoriously said to Barrett at that time, “so many of us on this side have this very uncomfortable feeling ... [because] ... the dogma lives loudly within you.”

Article VI of the U.S. Constitution prohibits religious tests for public office.  It reads:

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

England had a religious test that excluded Catholics from office from 1673 to 1829.   The religious test was a reflection of the fact that the Church of England was the official state religion there. England’s religious test for office was intended to protect the national church and the state “against perils from non-conformists of all denominations, infidels, turks, jews, heretics, papists, and sectaries.”

Nine American colonies had religious tests, but the only objection voiced at the Constitutional Convention to banning them was they weren’t needed because of the supposed “prevailing liberality” regarding religion.  During ratification, however, some argued in favor of religious tests as a safeguard against corruption in office, or to align with what most states were doing at the time, or out of prejudice against ‘heathens and Jews’. 

The Supreme Court applied the ban on religious tests in Article VI to the states in a 1961 case [Torcaso v. Watkins].  In that case, Maryland had refused to allow a man to be a notary public because he would not declare his belief in God.  The Supreme Court wrote:

• ... neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion..... This Maryland religious test for public office unconstitutionally invades the appellant's freedom of belief and religion, and therefore cannot be enforced against him.....

I could not find any cases directly concerning religious tests for office after 1961.  So it’ is all pretty much cut and dried and settled law.  If Durbin and Feinstein try this line of attack again this time around, Barrett’s supporters should not hesitate to say anti-religious bigotry lives loudly within them.