More than 40 years ago, Roy Torcaso was appointed a notary public in Maryland. When it came time for the swearing in, Torcaso refused to take the oath because it contained a reference to God. Torcaso, an atheist, said that would violate his freedom of conscience.
Maryland officials decided to go to the mat. They pointed to a provision in the Maryland Constitution that says public office is open to anyone willing to make a "declaration of belief in the existence of God."
Torcaso sued. The case went all the way to the Supreme Court, where Torcaso prevailed. Decided June 19, 1961, Torcaso v. Watkins is a brief, unanimous opinion with some very ringing language criticizing "religious tests" for public office. Here is a sample:
"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 nonbelievers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs."
Roy Torcaso died June 9. He was 96 years old. After his case, he became something of a student of church-state law. I met him on a few occasions and always admired his commitment and fighting spirit. Roy was proof that one person can, indeed, make a difference. He will be missed.
Despite the decisive opinion in Torcaso's favor, the issue of religious tests for public office still pops up from time to time. Maryland and six other states (Pennsylvania, Texas, Arkansas, Tennessee, North Carolina and South Carolina) still retain religious qualifications for public office in their state constitutions. These provisions are dead letters thanks to Roy's case, but they remain on the books.
Perhaps they are not so dead after all. In 1990, Herb Silverman, a professor of mathematics in South Carolina and an atheist, challenged that state's provision. Silverman sought to become a notary public to spark a test case. It took several years, but he eventually won a unanimous decision from the South Carolina Supreme Court stating what should have been obvious: the provision could not be enforced.
Article VI of the U.S. Constitution bars religious tests for federal office. Thanks to Torcaso's commitment, similar protections were put in place at the state level as well. States that retain bigoted provisions barring public office to non-believers and skeptics should remove them forthwith. It would be a great way to honor Roy's memory.