Author's Comment on the Texas Constitution

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The following excerpts are taken from The Constitution of the State of Texas: an annotated and comparative analysis, edited by George D. Braden, published in 1977 by the Texas Commission on Intergovernmental Relations.

Sec. 4. 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.

History

Freedom from religious test oaths for office is part of the American tradition of religious freedom. At one time such oaths had been instruments for the oppression of dissenters. Thus Article VI of the United States Constitution, prohibiting test oaths for federal officers in language identical to the first part of Section 4, betrays the origin of this section. All Texas bills of rights prior to 1876 repeated the guarantee against religious test oaths in identical form until, in 1875, the framers added the words of Section 4 after the semicolon.

Explanation

Very few cases refer to Section 4. Obviously public officials have not been required to take religious test oaths, hence there has been no ground for litigation. Section 4 has been cited, along with succeeding sections dealing with religion, in some child custody cases. Conceivably the award of child custody is a public trust within the meaning of this section but those seeking such awards are not required to take religious oaths. Indeed the courts steer clear of any inquiry into the applicant's religious beliefs.

When in 1876 Section 4 grew from a simple prohibition to include the proviso regarding belief in a Supreme Being, the guarantee was weakened. In fact, a bill was introduced in the Fifty-sixth Legislature requiring public school teachers to swear that they believed in a Supreme Being. The proviso seemed to authorize this mild test oath. While the bill was under consideration the United States Supreme Court handed down a decision declaring the Maryland test oath for public officers unconstitutional when it was applied to an atheist (Torcaso v. Watkins, 367 U.S. 488 (1961)). This and subsequent decisions indicate that the Supreme Being proviso violates the religious liberties guarantee embodied in the Fourteenth Amendment and is unconstitutional.

Comparative analysis

A total of 26 states prohibit religious tests for public office. Only two states other than Texas contain the proviso that tests not be required so long as a belief in a Supreme Being is acknowledged. Recent constitutions have not included sections on these subjects.

I only count one state besides Texas, namely South Carolina, that specifically mentions a "Supreme Being," among the eight which would similarly prohibit atheists from holding public office. (Thanks goes to God is for Suckers! for providing that link in a post about Atheism And The American Congress.)

Author's Comment

Protection against religious test oaths for public offices and public trusts is a basic protection which might be invaded by zealous pressure groups. Since the addendum of 1876 to Section 4 does seem to dilute the broad guarantee and presumably violates the United States Constitution, it should be deleted.

My emphasis, of course.