April 2020 Church & State Magazine | Cover Story

The U.S. Constitution contains a provision guaranteeing that there can be no religious test for public office – and for that, you can thank the handiwork of a South Carolina patrician named Charles Pinckney.

Found at the end of Article VI, the provision does more than simply guarantee the right of everyone to hold federal office, regardless of what they believe or don’t believe about God – it also strongly debunks the Religious Right’s “Christian nation” claims. After all, why would the Founding Fathers have guaranteed the right of Jews, Muslims, Buddhists, atheists and others to hold public office if they sought an officially Christian nation?

Promoting the idea during the Constitutional Convention, Pinckney called his idea “a provision the world will expect from you in the establishment of a system founded on Republican principles and in an age so liberal and enlightened as the present.”

Pinckney was a known advocate of religious freedom and church-state separation, and as a member of the Constitutional Convention put forth his own idea for a governing charter that scholars now call the “Pinckney Plan.” He proposed language stating that the U.S. government “shall pass no law on the subject of religion.”

Although that language was not adopted, several of Pinckney’s other ideas were, including the ban on religious tests. His contributions led to his being pinned with the nickname “Constitution Charlie.” (It should be noted that despite his forward-looking views on religious freedom, Pinckney was no progressive thinker in other areas. A slave owner, he defended the South’s practice of owning human beings until the end of his life.)

Of course, Pinckney wasn’t the only colonial-era thinker who objected to religious tests for public office. John Leland, a Baptist minister and noted advocate of religious freedom, penned an essay in 1790 titled “The Virginia Chronicle” in which he attacked antiquated laws in the Old Dominion that limited public office to certain types of Christians.

To Leland, the only thing that mattered was whether a candidate could win the support of his peers, not where, how or whether he worshipped.

“If a man merits the confidence of his neighbors in Virginia,” observed Leland, “let him worship one God, twenty Gods or no God. Be he Jew, Turk, Pagan, or Infidel, he is eligible to any office in the state.”

We can thank Pinckney for the ban on religious tests for federal office. But what about state and local offices? The situation there has a more complicated history.

Many of the early colonies had laws that limited public office to Christians, usually Protestants. Some states were somewhat more liberal. In Pennsylvania, any man could hold office as long as he was willing to profess a belief in God and the existence of heaven and hell, a provision broad enough to include many non-Christians.

In his epic tome Church, State, and Freedom, scholar Leo Pfeffer noted that belief in the Protestant faith was required for officeholders in New Hampshire, New Jersey, North Carolina and South Carolina. Other states, notably Delaware, Maryland and Massa­chu­setts, required belief in certain Christian principles but did not mandate acceptance of Protestantism.

Provisions this bigoted, and that clearly favored Christianity, could not long survive in a nation whose Constitution guaranteed religious freedom for all, and indeed as the 19th century progressed, they began falling by the wayside.

But that wasn’t the end of religious tests for public office. Eight states – Arkansas, Maryland, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee and Texas – retain language in their constitutions requiring that holders of public office believe in God. (Arkansas and Maryland went further and banned atheists from testifying in court.)

These provisions were not seriously challenged until the late 1950s, when Roy Torcaso, a Maryland man who wanted to become a notary public to help out his employer, balked at the requirement that he profess belief in God. Torcaso, an atheist, took the matter to court. Although Maryland courts ruled against Torcaso, the U.S. Supreme Court agreed to hear the case, Torcaso v. Watkins, and in 1961 reversed the state court decision, holding that Maryland’s requirement that public officials believe in God “unconstitutionally invades the appellant’s freedom of belief and religion and therefore cannot be enforced against him.”

Torcaso died in 2007 aged 96. He had remained active in social-justice issues his entire life. In 2011, Church & State ran a story about the case to mark its 50th anniversary. In an interview with the magazine, Torcaso’s daughter Linda Bernstein said the case had a powerful impact on her, even as a child.

“It was a very important thing to me,” Bernstein recalled. “I went on to become a lawyer because of our family. We had lawyers coming in and out of the house from the ACLU. There were not many women lawyers back in those days, but it occurred to me that I could do this. It didn’t require any heavy lifting, and I could talk and debate just as well as the men could.” (See “More Than A Minor Hero,” June 2011 Church & State.)

None of the eight states that have the God-belief requirement has bothered to repeal it, but the provisions can no longer be enforced. That doesn’t mean the issue is entirely dead, however. In 1990 Herb Silverman, a mathematics professor in South Carolina and an atheist, challenged that state’s provision by running for governor. Two years later, Silverman tried another track to challenge the provision, applying to become a notary and crossing out a reference to God on the application. His lawsuit reached the South Carolina Supreme Court, which ruled unanimously that the religious test pro­vision could not be enforced.

In 2009 Cecil Bothwell, an atheist, ran for and won a seat on the Asheville, N.C., city council. Some of Bothwell’s opponents groused that he was not legally entitled to hold the office and pointed to the provision of the state constitution that bans “any person who shall deny the being of Almighty God” from holding public office. Nothing came of the matter because the North Carolina provision is unenforceable.

Charles Pinckney would doubtless have been pleased.