June 2011 Church & State | Featured

Roy R. Torcaso was a 49-year-old bookkeeper working for a construction firm in Bethesda, Md., in 1959 when his employer mentioned that it would help the business if Torcaso became a notary public.

Torcaso had no objections and filled out the necessary paperwork. He was soon summoned to the Montgomery County Circuit Court to take a state oath required of all notaries – and that’s where the problems began.

Maryland’s Constitution mandated that anyone who sought to hold “any office of profit or Trust in this State” had to first declare a belief in God. Notaries were included, but Torcaso, an atheist, refused to comply. The court clerk in turn refused to approve his commission. A stalemate ensued.

So Torcaso went to court. Backed by the American Civil Liberties Union and the American Jewish Congress, Torcaso sued. The case reached Maryland’s highest court, the Court of Appeals, which ruled against him.

But Torcaso persisted, taking the case to the U.S. Supreme Court. Fifty years ago this month, his tenacity paid off when the Supreme Court ruled unanimously in Torcaso’s favor.

The decision in Torcaso v. Watkins, handed down on June 19, 1961, is short – it’s only 12 paragraphs – but Justice Hugo Black’s language is a ringing reaffirmation of religious liberty and church-state separation.

“There is, and can be, no dispute about the purpose or effect of the Maryland Declaration of Rights requirement before us – it sets up a religious test which was designed to, and, if valid does, bar every person who refuses to declare a belief in God from holding a public ‘office of profit or trust’ in Maryland,” wrote Black. “The power and authority of the State of Maryland thus is put on the side of one particular sort of believers – those who are willing to say they believe in ‘the existence of God.’”

Black noted “that there is much historical precedent for such laws” and pointed out that they existed in many of the colonies. But, he added, “There were, however, wise and far-seeing men in the Colonies – too many to mention – who spoke out against test oaths and all the philosophy of intolerance behind them.”

Indeed, Maryland’s Constitution had at one time been even more explicit. As originally drafted in 1776, the document insisted that all holders of public office swear a “declaration of a belief in the Christian religion.”

In 1867, the state’s constitution was modified, and the provision was rewritten to drop the reference to Christianity – but it still required a belief in God. Asked for a legal opinion on the matter in 1922, Maryland’s attorney general insisted that the provision was binding and would be enforced.

The Supreme Court believed differently. Concluding the Torcaso ruling, Black wrote, “This Maryland religious test for public office unconstitutionally invades [Torcaso’s] freedom of belief and religion and therefore cannot be enforced against him.”

At the Supreme Court, Torcaso was represented by the eminent church-state attorney Leo Pfeffer. Pfeffer and his legal team employed a straight-forward argument, asserting that the Maryland provision infringed on Torcaso’s First Amendment religious liberty.

Pfeffer and the other attorneys also argued that Maryland’s requirement violated Article VI of the U.S. Constitution. That section, which was championed by South Carolina delegate Charles Pinckney during the Constitutional Convention, asserts that there shall be “no religious test” for “any Office or public Trust under the United States.” (See “Pinckney’s Promise,” June 2011 Church & State.)

Historically, Article VI has been seen as a provision covering only federal office. In its Torcaso ruling, the Supreme Court declined to say whether it should be extended to state and local offices as well, noting that the justices were able to settle the case on other grounds.

The high court also shot down Maryland officials’ claim that Torcaso was not injured because he was not required to hold public office.

“The fact, however, that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution,” observed Black.

Torcaso’s high court win invalidated religious qualifications for public office that existed in seven other state constitutions – Arkansas, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee and Texas. While the provisions are still on the books in those states, they can’t be enforced.

That doesn’t mean there aren’t occasional attempts to try. In 1992, South Carolina math professor Herb Silverman, hoping to test the state’s ban on atheists holding public office, applied to become a notary public. Silverman crossed out all references to God on his application before submitting it, and his commission was denied. Backed by the American Civil Liberties Union, Silverman filed suit. The case reached the South Carolina Supreme Court, which ruled in Silverman’s favor.

Silverman said he talked with Torcaso during the litigation and drew inspiration from him.

“I made friends with Roy Torcaso and other terrific people who work tirelessly to keep the wall between church and state as high as Thomas Jefferson wanted it to be,” Silverman told Church & State. “I like to think of myself as one of Roy Torcaso’s numerous disciples who continue the never-ending struggle he inspired. What a wonderful afterlife for Roy!”

In 2009, Cecil Bothwell, a resident of Asheville, N.C., won election to the city council. His opponents insisted that Bothwell, an atheist, was not legally qualified to hold office in the state. They threatened court action, which never materialized. (See “‘No Religious Test’ Tested, February 2010 Church & State.)

Yet, successful candidates like Bothwell remain an exception. Although legally non-believers cannot be barred from public office, they usually face steep odds against getting elected if they are open about their views. The American public, it seems, has chosen to apply its own version of a religious test for public office.

A 2007 Gallup poll, for example, found that 53 percent of respondents said they would not vote for an atheist for president, even if he or she were otherwise qualified. No other minority group polled such high negatives. Forty-three percent said they would not vote for a gay candidate, while 24 percent said they would not back a Mormon.

The religious tests for public office received a little more attention than usual in 2007-08 when former Massachusetts governor Mitt Romney, who is Mormon, began campaigning for president. Some Religious Right activists attacked Romney’s faith as not genuinely Christian.

Oddly enough, former Christian Coalition Executive Director Ralph Reed attempted to come to Romney’s aid (most likely for hefty remuneration). Early in 2008, Reed – who now runs his own political consulting firm – began flogging a documentary titled “Article VI: Faith, Politics, America” that was produced by a Mormon filmmaker in Utah. The film sang the praises of Article VI in a rather obvious attempt to calm evangelical fears of a Mormon president. Special screenings were held in evangelical churches, but the ploy fell flat.

As for Roy Torcaso, he lived a long life, dying on June 9, 2007, at age 96. A Washington Post obituary noted that Torcaso saw his case in big-picture terms.

“The point at issue is not whether I believe in a Supreme Being,” Torcaso said while the case was under way, “but whether the state has the right to inquire into my beliefs.”

The Post obituary reported that after Torcaso was sworn in as a notary using a secular oath, his first official act was to notarize the application of his daughter Linda, who was seeking a ham radio operator’s license.

In an interview with Church & State, Bill Torcaso, Roy’s son, recalled the day when the case was argued before the high court – April 24, 1961. Bill was 9 at the time, and he attended the oral argument along with his two sisters, Linda, age 14, and Susan, 2.

“I got out of school for the day, which was good, and was taken down to the Supreme Court,” Bill Torcaso said, “but I was really quite bored because it was over my head. My sister Linda had a greater concept of what was going on.”

Bill, now a 58-year-old computer programmer in Massachusetts, remembers hanging around the steps of the Supreme Court after the argument and hearing speculation from people who had attended that his father would win the case. That evening, the family enjoyed a meal in a Chinese restaurant.

Bill’s memories of the day the decision came down are hazy, but he recalls some unpleasant fallout.

“I don’t know all of the facts about this, but the family story is that Roy lost his job because of the publicity surrounding the case,” said Bill. “His employer at the time either did not want to employ an atheist or had some other motivation. I’m told Roy lost his job specifically because of the case. He had to find another, and that was a financial strain on the family.”

Roy’s public unmasking as a non-believer didn’t sit well with some in his Wheaton, Md., community, either.

Recalls Bill, “Kids used to play from house to house in the neighborhood. After the case, there were a few houses in the neighborhood where I was not allowed to enter and play.”

The case had a powerful impact on Roy’s daughter Linda (now Linda Bernstein) as well and sparked in her a lifelong interest in the law. She earned a law degree and is now an administrative law judge with the Social Security Administration in Philadelphia.

“It was a very important thing to me,” Bernstein told Church & State. “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.”

Bernstein remembers how thrilled her father was when he won the case. Fifty years later, she said, it can be hard for people to grasp how meaningful the victory was.

“It just seems ridiculous if you put it in context now – that someone would have to swear something of a religious nature even to hold the most minor of public jobs,” Bernstein said. “It just seems absurd now, but it was a new idea at the time.”

Reflecting on her father, Bernstein added, “He was an activist to the end of his life. He went to Lynchburg to protest the Moral Majority, and he attended pro-choice marches in the capital. He just did not believe that religion should enforce its views on the whole of society. He really believed that everyone should have the right to choose their own views.”

Fred Edwords, who has long been active in humanist causes, remembers meeting Roy in the early 1980s. Torcaso was receiving a “Humanist Pioneer” award from the American Humanist Association and during his acceptance speech, told a story about how he once picked up a hitchhiker, whom he told about his Supreme Court cause.

When the young man left the car, he told Torcaso, “Well, Mr. Torcaso, I just want you to know that you are one of my minor heroes.”

Recalls Edwords, “Roy thought that was amusing – to be someone’s minor hero.”

Edwords remembers Roy as “pretty frank in his opinions” but always polite in dealing with others, even those who disagreed with him. He also had a dogged persistence in righting wrongs.

“When he was pursuing something, he was just determined that was the thing to do,” Edwords said. “He was going to go about it and didn’t care if people advised against it. You sensed he had a strong passion, but it was beneath the surface. It wasn’t the kind of thing that expressed itself in wild hand-waving and loud tones. That was not his manner. Even when speaking to people who were getting excited, he remained calm.”

Torcaso remained active in church-state battles long after his case was decided. Active in the American Humanist Association, he became a humanist celebrant and began officiating at weddings in some states.

In 1988, Torcaso visited Americans United to voice his frustration over laws in Virginia that limited the right to preside at weddings to ordained clergy. His attempt to challenge that law in Virginia courts was unsuccessful.

Torcaso took on other causes as well. As a boy growing up in Washington state, he learned an appreciation for the land and as an adult was active in the environmental movement. He also worked for civil rights and in the 1960s stood up to residents who attempted to block integration of his neighborhood.

But Torcaso will always be remembered most for his case striking down state religious tests for public office.

“Roy Torcaso’s case is truly a landmark church-state ruling,” said Ayesha N. Khan, legal director of Americans United. “It protects the right of conscience and reminds us that government has no power to impose religion on anyone. In many ways, it’s the perfect application of the separation of church and state.”