Religious Test

The Heritage Guide to the Constitution

Religious Test

Article VI, Clause 3 religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The Constitution contained one explicit reference to religion: the Article VI ban on religious tests for “any office or public trust under the United States.” Despite much constitutional litigation over the boundary between church and state in the years since—most of it since World War II—there are no judicial decisions construing the religious test ban. This is not to suggest that the clause has been ineffectual. On the contrary: no federal official has ever been subjected to a formal religious test for holding office. The Article VI religious test clause, because it is relatively clear, is a self-executing success.

By its plain terms, the ban extended only to federal officeholders. States were free at the time of the Founding 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. National offices were, on the other hand, open to everyone. While today this freedom from religious tests seems obvious, this clause was remarkably progressive for its time.

The surviving accounts of the Constitutional Convention indicate that the Article VI ban “was adopted by a great majority of the convention, and without much debate.” Only North Carolina opposed the prohibition; the Connecticut and Maryland delegations were divided. All the other delegates were in favor. But even some “nay” voters did not favor religious tests for federal office. Connecticut’s Roger Sherman, for example, thought the ban unnecessary, because “the prevailing liberality” provided sufficient security against restrictive tests.

The “prevailing liberality” was not, however, as prevailing as Sherman believed. In fact, the clause was hotly disputed in some states during the 1788–1789 struggles over ratification of the Constitution. The main objection was that “Jews,” “Turks,” “infidels,” “heathens,” and even “Roman Catholics” might hold national office under the proposed Constitution. The times were such that the force of this objection was, for many, substantial and self-evident. 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.” The Religious Test Clause was thus a focal point for reservations about the Constitution’s entirely secular language.

Some defenders of the Constitution argued, in response, that a belief in God and a future state of reward and punishment could, notwithstanding the test ban, be required of public officers. On this interpretation, Article VI would rule out only sectarian tests, such as would exclude some Christians (but not others) from office. Others asserted that the constitutional requirement that officers take an oath to support and defend the Constitution necessarily implied that officers had to affirm at least some tenets of natural religion. See Oaths Clause, Article VI, Clause 3.

Defenders of the Constitution put forward two reasons for the religious test ban. 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 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.” More importantly, they argued that the Constitution wisely declined to exclude some of the best minds and the least parochial personalities to serve in the national government. In his 1787 pamphlet, “An Examination of the Constitution,” Tench Coxe said of the religious test ban: “The people may employ any wise or good citizen in the execution of the various duties of the government.”

The limitation of Article VI, Clause 3, to federal officeholders was effectively eliminated by the Supreme Court in the 1961 case, Torcaso v. Watkins. Relying upon the First Amendment religion clauses, the Court struck down religious tests for any public office in the United States. Torcaso means that not even a simple profession of belief in God—as was required of Roy Torcaso, an aspiring notary public—may now be required.

The scope of anyone’s immunity from disqualification from office on religious bases now depends upon the meaning of the Establishment and Free Exercise of Religion Clauses, not upon Article VI. At present, the central rule enunciated by the Supreme Court for Establishment Clause jurisprudence is the “endorsement” test. It stipulates all public authority—from state and federal to the most local municipal body—must never do or say anything that a reasonable person could understand to be an “endorsement” of religion, i.e., that favors adherents over non-adherents. Nothing in the neighborhood of a religious test for office could survive application of this norm.

The Establishment Clause thus totally eclipses the Religious Test Clause. Questions about the precise scope of the sort of “religious test” banned, and about whether “office[s] of public trust” include members of Congress as well as the most junior postal worker, no longer matter—save, perhaps, to historians.

Gerard V. Bradley

Professor of Law, Notre Dame Law School

Morton Borden, Jews, Turks, and Infidels (1984)

Gerard Bradley, The No Religious Test Clause and the Constitution of Religious Liberty: A Machine That Has Gone of Itself, 37 Case W. Res. L. Rev. 674 (1987)

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