Article VI, Clause 3:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

In a 1787 article defending the necessity of the Constitution’s bar on religious tests, Oliver Ellsworth, third Chief Justice of the Supreme Court, defined a religious test as “an act to be done, or profession to be made, relating to religion (such as partaking of the Sacrament according to certain rites and forms, or declaring one’s belief of certain doctrines), for the purpose of determining whether his religious opinions are such that he is admissible to a public office.” 1 In 1941, the Supreme Court recognized in dicta that the U.S. Constitution prohibited “the religious test oath . . . prevalent in England.” 2 Nonetheless, even at that time, a number of state constitutions required office holders to hold a general belief in God’s existence.3

It was not until 1961 that the Supreme Court ruled that the U.S. Constitution barred religious tests for state office.4 In Torcaso v. Watkins, the Court held that a Maryland provision requiring public officeholders to declare a “belief in the existence of God” violated the First Amendment’s Establishment and Free Exercise Clauses.5 The basis of the decision was the First Amendment’s protections for “freedom of belief and religion.” 6 However, the Court’s opinion also relied on Article VI’s prohibition on religious tests to support the idea that religious test oaths were contrary to American tradition.7 Some other decisions have similarly suggested that the Religion Clauses prohibit laws that institute religious tests for participation in public life.8

The provision prohibiting religious tests does not prohibit other types of oaths for public officeholders,9 although First Amendment protections for speech and association may sometimes limit the government’s ability to require oaths that burden those rights.10

Footnotes

1

A Landholder VII, reprinted in III The Documentary History of the Ratification of the Constitution and the Adoption of the Bill of Rights 499 (eds. John P. Kaminski et al. 2009).

2

Bridges v. California, 314 U.S. 252, 265 (1941). See also, e.g., Girouard v. United States, 328 U.S. 61, 65 (1946) (noting that a conscientious objector’s “religious scruples would not disqualify him from becoming a member of Congress or holding other public offices,” citing Article VI’s religious tests bar).

3

See Church of the Holy Trinity v. United States, 143 U.S. 457, 468–70 (1892) (citing various state constitutional provisions to demonstrate their “recognition of religious obligations” ).

4

Torcaso v. Watkins, 367 U.S. 488, 496 (1961).

5

Id. at 489 (quoting Md. Const. Declaration of Rights art. 37).

6

Id. at 496.

7

Id. at 491–92.

8

See, e.g., Bd. of Educ. v. Grumet, 512 U.S. 687, 702 (1994) (plurality opinion); Cantwell v. Connecticut, 310 U.S. 296, 305 (1940).

9

Am. Commc’ns Ass’n v. Douds, 339 U.S. 382, 414 (1950).

10

Amdt1.7.9.1 Loyalty Oaths to Amdt1.7.9.4 Pickering Balancing Test for Government Employee Speech; Amdt1.8.2.3 Denial of Employment or Public Benefits.