NO RELIGIOUS TEST

by Gene Garman

Q: Does Art. 6, Sec. 3, forbid religious tests to be required in the United States ONLY for public office or public trust? That is what it would seem to say. An elementary school child asked, pressured, or required by a public school teacher to recite ". . .one nation, under God. . ." would not seem to be qualifying for any public office.

A: Allow me to rephrase your question. You are asking, does Art. 6, Sec. 3, forbid religious tests only for public office or public trust? Indeed the wording specifically says: “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.” The Constitution applies the prohibition against religious tests to all public officials, both federal and state. If such a test cannot be required of any legislative, executive, or judicial office holder in the United States, it can be logically assumed that no such test can be required by those same legislators, officials, or judges of any other American. The prohibition principle of separation between religion and government is emphatically stated by the Founding Fathers in three words: "no religious test." In America there is to be no religious test imposed upon anyone.

It is a total misreading and an obvious distortion of the principle to suggest that, because the Constitution does not specifically include the words an "elementary school child," a child or any other American can therefore can be required to pledge faith in the existence of or allegiance to a God. The Supreme Court of the United States has ruled that no one can even be required to pledge allegiance to the flag (West Virginia v. Barnette, 310 U.S. 624, 1943), and if there is one even more fundamental principle unique to America it is separation between government and religion. In order to state the principle even more clearly, the First Congress immediately added to the Constitution the specific words that "Congress shall make no law [even] respecting an establishment of religion [emphasis added]." In 1868 the Constitution was revised by the Fourteenth Amendment, and the Supreme Court subsequently applied the First Amendment to the states (Gitlow v. New York, 268 U.S. 652, 1925; Cantwell v. Connecticut, 310 U.S. 296, 1940; and Everson v. Board of Education, 330 U.S. 1, 1947). It must be made clear that no government official or employee can be subjected to any religious test or to require it of others. It is unfortunate that pandering politicians in the 1950s did not understand the unique American principle of separation between religion and government when they resolved to place the word "God" onto the currency and into the pledge.

Why has the wording not been challenged in the courts? The matter is of trivial significance (symbolism over substance), but it also would be like attacking motherhood and apple pie. See Leonard W. Levy's The Establishment Clause. Yet, the word "God" has to be included in the definition of "religion" and is an obviously unconstitutional imposition upon Americans who are to be protected from religion established and imposed by law or government. As James Madison would argue, if Congress can make one law (no matter how trivial), what prohibits it from making other laws which may not be so trivial? Thus, the total prohibition: "no religious test" and "no law." "No" means no. Or, as the song would ask, what part of "no" is difficult to understand? What is directly prohibited cannot be indirectly permitted, lest the principle of the Establishment Clause become meaningless.

Q: You rephrased my question correctly, but your answer to it seemed to be more subjective than objective; it seems as though you are reading more into Art. 6, Sec. 3 than is plainly written. The declaration of disallowance ("but no religious test shall ever be required as a qualification to any office or public trust under the United States") forbids religious tests for those holding office. It does not even suggest that this policy extends any further.

A: Your last sentence is unacceptable. The Founding Fathers drafted the Constitution to limit the powers of government and to stipulate and delegate what powers it did have. The Constitution gives no power to the government to impose a religious test upon anyone. There is no statement in the Constitution which gives the federal government any power over religious opinion. It is subjective to suggest that the Constitution allows government to impose a religious test upon Americans who are not public office holders, and the First Amendment was drafted to specifically address the question you raise. The two prohibitions cannot be separated in terms of principle; the religion clauses of the First Amendment did not alter the principle of the Constitution. Many in the various states objected that the Constitution, as adopted by the states in 1788, was not strongly enough worded in regard to the power of government as it related to religion, and they approved the Constitution only because of the promise by supporters of the Constitution (like James Madison) that a Bill of Rights would be added which included a stronger and specifically broader statement limiting the power of government in regard to religion. The First Congress answered any question as to government imposed religion by drafting and adopting the "no law respecting an establishment of religion" clause. That brief accounting is not a subjective analysis; it is fact.

Of course, Art. 6, Sec. 3, means exactly what it says, but it also sets forth the principle of separation between religion and government. The Founding Fathers did not delegate any power to the federal government which would allow it to impose any religious test upon anyone--that is not a subjective understanding. Furthermore, the Constitution does not end with the Founding Fathers; it is a living document which is open to amendment by future generations. The First Amendment as drafted in 1789 (one year after the Constitution was adopted by the states) broadly stated what the Founding Fathers did not specifically state, and the First Amendment is in complete harmony with the principle of separation between religion and government as stated in Art. 6., Sec. 3: "no religious test" is simply another way of plainly saying that "no law" can be made even "respecting an establishment of religion."

Just because the Constitution's specific wording obviously applies to those holding public office, no argument can be made that it allows religious tests for everyone else. The Constitution delegates no power and includes no word which suggests that a religious test can be imposed upon any citizen. That is an objective understanding. No objective understanding of the Constitution can allow any power to government over religious opinion. This understanding is so objective that it is in complete agreement with the words of James Madison wherein he writes in his essay “Monopolies”: "Strongly guarded is . . . the separation between Religion and Government in the Constitution of the United States." You can say that it is subjective to assume the principle of separation between religion and government in the Constitution because it does not specifically use those exact words; but, when the Father of the Constitution, James Madison, (who was one of the Founding Fathers who personally drafted the Constitution and who was personally on the six member committee which produced the final draft of the religion clauses of the First Amendment) says that the Constitution strongly guards "separation between Religion and Government"--even though those exact words are not specifically used in the Constitution, an understanding of Art. 6, Sec. 3, which is in complete agreement with James Madison, certainly cannot be fairly accused of being subjective.

If the narrow wording for which you look is not in the "no religious test" clause, it is definitely in the broader context of the Constitution which delegates no power whatsoever to government over religious opinion; and, it is obviously in the specific "no law" wording of the First Amendment which was added to more broadly state the “separation between Religion and Government” principle of the Constitution.

Thanks for the questions, and be sure to read my America's Real Religion and The Establishment Clause by the distinguished constitutional historian Leonard W. Levy.

Copyright 1999 Gene Garman

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