State Constitutions Go Astray on Linking Religion and Government

Because they knew from their own European history and experience that mingling religion with government leads to divisive, discriminatory, and sometimes bloody consequences, our Founders drew up a Constitution that is scrupulously neutral toward religion. The document never once mentions God or any other version of a supreme being and neither requires nor advises a belief in one. This was intentional. Even though including references to religious belief in the Constitution was hotly debated in the drafting and ratification processes, such language was purposely left out in the end.

In fact, the Constitution’s references to religion are limited to a ban on requiring a religious test to qualify for public office (Article VI) and a directive to the government that it neither establish a religion nor prohibit its practice (First Amendment). The religious-test-for-office ban was opposed by some at the time, who argued that it would open governing positions to maligned groups such as Jews, Catholics (called papists), Muslims (Mahometans), other minority faiths, and nonbelievers (infidels). Those very arguments made it readily apparent to the Constitution’s drafters that their concern about the divisive perils of mingling religion and government was justified.

As clear cut as this separation of church and state was meant to be—and in spite of how fundamental that founding principle is—individual states have almost uniformly departed from it when writing their own constitutions. At the extreme, and in direct violation of the federal Constitution, eight state constitutions to this day contain language requiring that one must believe in God to hold public office. The South Carolina constitution’s language is typical, stating: “No person who denies the existence of a Supreme Being shall hold any office under this Constitution.” While such required God-belief has been tossed out by courts as unconstitutional when it’s been challenged, this has not led states to excise the offending language from their constitutions.

The subtler but broader preambles problem

The states’ habit of diverging from the Founders’ constitutional principle of keeping government and religion separate is not limited to the extremes. It is also seen in a more subtle but more widespread form as almost all state constitutions invoke God in their preambles. My own state of Colorado, for example, opens its constitution preamble with “We, the people of Colorado, with profound reverence for the Supreme Ruler of the Universe, in order to form a more independent and perfect government . . .” Other preambles, like Pennsylvania’s and Montana’s, speak of being “grateful to God” for liberty, natural beauty, or other “blessings.” (Various efforts have been made, dating to the 1800s, to amend the preamble of the federal Constitution to include similar references to God. One proposal went so far as to suggest adding that one of the Constitution’s purposes is “to constitute a Christian government.” None of these efforts has succeeded.)
How much does it matter that the states diverge this way from the Constitution of our Founders? Quite a lot. Because there are practical ramifications and also substantive issues of principle and perception in play.
Unconstitutional actions reversed

First of all, though it is clearly unconstitutional to require belief in God to qualify for public office, it does not mean people in authority won’t try to impose such a requirement. In the early 1960s, Roy Torcaso was denied a notary public appointment because, as an atheist, he refused to state a belief in God as required by the Maryland constitution. A circuit court rejected his claim that his constitutional rights were being violated. An appeals court affirmed that rejection by oddly arguing he was not being “compelled to believe in God” because he was not compelled to be a notary. But a unanimous U.S. Supreme Court ultimately sided with Torcaso, with Justice Hugo Black writing that “neither a State nor the Federal Government can constitutionally force a person to profess a belief or disbelief in any religion. Neither can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers.”

Years later, in the 1990s, the atheist Herb Silverman of South Carolina applied for a notary license and paid the required fee but crossed out the words “so help me God” from the application oath. The governor’s office rejected his application without explanation. Research by the ACLU found it was the only one of more than 33,000 such applications to be rejected over a two-year period. Silverman sued, and when a district court held that the governor should approve his application, the governor appealed to the South Carolina Supreme Court. That court affirmed the lower court’s ruling that requiring a belief in a supreme being in order to hold public office violated the U.S. Constitution’s Article VI ban on religious tests. So Silverman prevailed, and the religious-test ban was affirmed. Nonetheless, like the other seven states mentioned earlier, South Carolina still retains its Constitution’s belief-in-God requirement.

Wording that’s dishonest . . . and one that’s distinct

A good number of the states that require a belief in God to hold office try to argue they are not imposing a religious test because they are not requiring a belief in a particular religion. Some even attempt to say so explicitly, such as Maryland’s doublespeak phrasing: “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.” In other words, requiring belief in God is not to be seen as a “religious test.” Never mind that linguistically, the phrasing “No religious test…other than” already confirms such belief is indeed a religious test.

There is actually one state that specifically protects nonbelief in its Constitution by stating that no test for public office is required “on account of religious belief or the absence thereof.” It might initially be surprising to learn this state is religiously conservative Utah. But recall Mormonism has historically been subject to widespread discrimination in the U.S. Predominantly Mormon Utahns may have a kind of heightened sensitivity to the dangers of religious preferencing similar to what our Founders were attuned to.

Principle and perceptions matter

While courts are likely to continue rejecting any state’s attempt to require belief in God to hold office, thereby keeping practical ramifications at bay, that does not render God language benign in state constitutions. There are also pivotal matters of principle and perception.

Recent surveys by the Pew Research Center reveal that approximately 25% of Americans are religiously unaffiliated, identifying as atheist, agnostic or “nothing in particular.” That percentage rises to roughly 35% for millennials. In raw numbers, these “nones” are more numerous than Jews, Catholics, or Muslims, and close to 40% of them say specifically they “don’t believe in God.” The trend in these numbers has been consistently upward with each succeeding survey Pew conducts.
The preambles of state constitutions commonly begin with the phrase “We the people,” in which “we” is taken to imply all the state’s citizens as a group. But most of these preambles follow up that phrase by saying something like (to quote Colorado’s again) “with profound reverence for the Supreme Ruler of the Universe.” Problem is, this expresses a falsehood for a substantial percentage of “we” who do not share a “profound reverence for the Supreme Ruler” or any other religious agent.

Marginalizing nonbelievers

What does having a religious premise in such a prominent and consequential document say about the state’s nonreligious citizens? It suggests they are an excludable group. Outsiders. Second-class citizens. After all, it is their Constitution too, but in its claim to speak for “we,” it does not speak for them. This also results in the state attributing to these nonreligious citizens’ beliefs and sentiments they clearly do not embrace. So there is an offense of omission on the one hand (the exclusion from “we”) and one of commission on the other (falsely ascribed religious belief.)

Such preambles assume religiosity is the norm. This then contributes to marginalizing the nonreligious. This “abnormalizing” of nonbelievers feeds prejudicing myths such as seeing the nonreligious as less ethical than their religious neighbors, less honorable as citizens, less deserving of public office. It’s been well documented that openly nonreligious persons are seen as the least electable, even compared to other statistically disfavored cohorts. This kind of marginalization based on religious sentiment exacerbates political and societal divisiveness. Exactly the problems our Founders confronted and took decisive steps to avert by cleanly separating religion from government.

Clarity from the Founders

James Madison, chief draftsman of our Constitution, spoke his mind on this in his famed Memorial and Remonstrance Against Religious Assessments by stating: “The religion, then, of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” Note that Madison said the embrace of religion is an individual decision and action. Not something to be assumed for all or imposed as groupthink. Similarly, Thomas Jefferson, in his precedent-setting Virginia Statute for Religious Freedom, observed that “fallible and uninspired men” have at times claimed their thinking as the only true religious beliefs and then tried to impose them on others. Jefferson said this is detrimental to natural rights and actually corrupts religion. He insisted instead that “our civil rights have no dependence on our religious opinions.” But constitutions that dedicate a state and its citizenry to God imply such a dependence.

The Founders’ strategy in dealing with such matters was as inspired as it was revolutionary. They chose to treat believers of all types, and nonbelievers as well, equally. And they chose to keep the government separate from religion. It is unfortunate that the states, by and large, have opted to ignore that history and contradict this all-important principle in composing their constitutions.

(Acknowledgement: The book Godless Citizens in a Godly Republic by R. Laurence Moore and Isaac Kramnick, © 2018, W. W. Norton & Company was a source for several historical details in this article.)

Ken Burrows
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Ken Burrows of Colorado Springs is a longstanding member of Americans United for Separation of Church and State and the American Humanist Association. He writes frequently on church-state issues.

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