Positive Liberty

At his official web site, Maryland State Delegate Don Dwyer seems to support the idea that Muslims, agnostics, Unitarians, deists, atheists and even apparently Jews may be excluded from public office. Since Delegate Dwyer is my representative, I take his stance very seriously, and I have decided to show why it is mistaken.

I am not sure whether Dwyer actually wants to exclude any of these groups, but he does go a frightening long way toward giving a (bogus) legal justification for it. Let’s let Delegate Dwyer explain the issue himself:

Today many words have completely different meanings than when the word was originated. This is especially true in terms of “Political Correctness”. Worse yet, words redefined to promote an agenda.

The grammatical errors are his. And yelping about “political correctness” is usually the second sign of trouble. What is it about these two words that makes everyone’s brain stop working, anyway?

Sometimes, there’s nothing wrong with promoting a political agenda, particularly if your “agenda” is fairness for all Americans. But let’s hear more from Delegate Dwyer:

In 1787, the term “religion” included the various forms of Christianity expressed by the different Christian denominations. The phrase, “no religious test” in 1787 meant there would be “no denominational test,” as we would understand it today in 2004; no test as to whether a man was a Presbyterian, Baptist, or Anglican; however, “no religious test” did not mean any exclusion of a required declaration of Christian beliefs for men aspiring to office in civil government, as can be seen by examination of the early state constitutions.

His logic is flawed, and so is his history: Judaism, Islam, deism, and Unitarianism were all deemed “religions” in the eighteenth century, as were a host of others. It is true, but misleading and incomplete, to say that the term “religion” included the Christian denominations, period. Religion extended to all the other things generally called religions today, not merely to the various branches of Christianity. Eighteenth-century writers often gave even atheism the benefit of the doubt, labeling it, too, a “religion.”

Delegate Dwyer adds to this another legal and historical error; this one is far more serious. He cites the discredited, fraudulent historian David Barton:

[In the Tennessee state constitution of 1796,] a fixed set of religious beliefs for an office holder is prescribed in Article VIII, and then a religious test is prohibited in Article XI. Obviously, in [the Founders'] view, requiring a belief in God and in future rewards and punishments was not a religious test.

Lest there be any doubt, here is one example of something that Dwyer seems to believe is not a “religious” test:

‘I, ________, do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.’

There are two things that Delegate Dwyer needs to learn here.

1.) Jesus Christ, the Holy Ghost, God the Father, the Old Testament, and the New Testament… are all religious! A self-contradictory scrap of paper written in Tennessee in 1796 doesn’t change matters in the least, and it is surprising to see someone of presumably strong religious faith arguing that belief in Jesus Christ is not, for purposes of definition, “religious.”

2.) These older state constitutions are perfectly irrelevant to the legal question of church/state separation today, as their religious tests have been rendered moot by a later constitutional amendment. Here’s how it happened:

At the time of ratification, the religious test clause of Article VI applied only to the federal government. The same was true of the First Amendment. Back then, individual states could still perform any religious test that they liked. They could even endorse or subsidize specific religions. Not until the Fourteenth Amendment were the states consistently held to the test clause and First Amendment that the federal government had been observing more or less consistently all along.

Let’s put the documents all out on the table. Here is the text of the test clause from Article VI:

…no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Here is the text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There’s not a word about state governments in any of this. The closest we come is a reference to “Office or public Trust under the United States,” but interpretively this refers only to the federal government, for other passages in the Constitution distinguish quite carefully between the United States and the several states that compose it.

In the original Constitution, then, the states could do whatever they wished on these questions. They could have religious tests, as Pennsylvania did; they could have no religious tests, as Virginia did. They could even have a religious test, and claim that it wasn’t a religious test, as Tennessee did, bless their hearts.

Then came the Fourteenth Amendment, whose section 1 reads as follows:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Regardless of what may or may not have transpired in Tennessee in 1796, states from 1868 onward were forbidden to enact a religious test because this would deprive members of some faith groups the equal protection that the fourteenth amendment guarantees.

As it happens, a Supreme Court case originating in Maryland–of all places–upheld a total ban on religious tests of the type that Dwyer seemingly wants to enact. In Torcaso v. Watkins (1961), the U.S. Supreme Court struck down a Maryland state law that was much tamer than Delegate Dwyer’s quoted formula; it required only profession of faith in a Supreme Being, which Torcaso refused. The court wrote: “This Maryland test for public office cannot be enforced against appellant, because it unconstitutionally invades his freedom of belief and religion guaranteed by the First Amendment and protected by the Fourteenth Amendment from infringement by the States.”

Apparently Delegate Dwyer would rather pry into the private beliefs of officeholders. But I’ve got another idea: Let’s throw Don Dwyer out of office instead.