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You Can Hold Any Office You Want in Texas ... 'Provided You Acknowledge the Existence of a Supreme Being'

Via Legal As She is Spoke, I came upon a surprising provision in the Texas State Constitution. Section 4 of Article 1 of the state's Constitution (which is its Bill of Rights) provides:

RELIGIOUS TESTS. No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.

Got that? Texas will not preclude you from becoming its governor, head dog-catcher or any other state official ... so long as you will acknowledge the existence of a Supreme Being. Thanks, Texas!

LASIS set out in this post to figure out how Section 4 did not violate the U.S. Constitution, and whether the state was alone in requiring officials to acknowledge the existence of a Supreme Being. In short, LASIS concluded that:

1. Section 4 does violate the First Amendment's religion-related protections, as applied to the states via the due process clause of the Fourteenth Amendment. In 1961, LASIS notes, the U.S. Supreme Court considered the case of Roy Torcaso, an atheist who challenged Article 37 of the Constitution of Maryland's Declaration of Rights. Article 37 similarly stated that that "no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God." Torcaso sought to become a notary public in Maryland, but refused to declare any such belief. The Supreme Court held that Article 37 infringed upon Torcaso's First Amendment rights.

2. Despite the infringing nature of language such as that found in Texas' Section 4, some states like Maryland have left the language in their constitutions anyway. In a Maryland case (State v. Hutchinson) that followed Torcaso, a man convicted of murder challenged his conviction on the ground that Article 36 of Maryland’s Declaration of Rights similarly required that jurors profess a belief in the existence of God. The court held that while the requirement in Article 36 was "still literally a part of the Declaration of Rights," it had previously been found to be unconstitutional and invalid, and therefore "rendered null and void."

LASIS speculates that Texas and various other states whose constitutions still contain religious oath requirements have not bothered to remove the language under the "why bother, it is null and void" rationale seen in the Hutchinson case.

Posted by Bruce Carton on October 24, 2011 at 02:35 PM | Permalink | Comments (5)

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