Torasco v. Watkins

God Is Not One: The Eight Rival Religions That Run the World and Why Their Differences Matter had a chapter on atheism. It led me to Torasco v. Watkins. 

This 1961 Supreme Court case involves a Maryland constitutional provision that required a declaration of a belief in God to be a notary public.

The lower court noted: "To the members of the Convention, as to the voters who adopted our Constitution, belief in God was equated with a belief in moral accountability and the sanctity of an oath." After all, people say "so help me God."

The Maryland Constitution also notes:

[N]or shall any person, otherwise competent, be deemed incompetent as a witness, or juror, on account of his religious belief; provided, he believes in the existence of God, and that under His dispensation such person will be held morally accountable for his acts, and be rewarded or punished therefor either in this world or in the world to come.

Yes, present tense, though after Torasco (which struck down the requirement for notaries), the provision was held to be unconstitutional. Torasco listed Buddhism as among "religions in this country which do not teach what would generally be considered a belief in the existence of God."  And, the state case involved a Buddhist:

In this appeal by a Buddhist from a conviction of murder, we are confronted with the question of whether the provision of Article 36 of the Maryland Declaration of Rights that no person shall be deemed incompetent as a juror on account of religious belief "provided he believes in the existence of God" has been rendered unconstitutional under the Fourteenth Amendment by the decisions of the Supreme Court of the United States.

The original state ruling noted that the state constitutional provision could logically mean atheists could not be witnesses. This was not deemed a problem. Shades of 19th-century cases when certain states did not allow black people to testify. The state did allow affirmations since after all even Jesus himself instructed people not to swear.  

The Supreme Court basically thought the Maryland religious test oath was absurd in our constitutional system. However, it was not the only state with such a provision. 

And, we still accept references to "God" in oaths and the Pledge of Allegiance. I suppose if it ever came up, Torasco v. Watkins would require an affirmation option. 

Either way, it is a type of establishment of religion. Engel v. Vitale (school prayer) in a footnote noted:

There is of course nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance.

A reference to a historical document is not an establishment of religion. A reference to God in the Star Spangled Banner might be acceptable. OTOH, how about if God Bless America was an official anthem?  What about Jesus Bless America? At some point, we might have an issue.  

The "manifestations in our public life" amount to a range of things, including presidential speeches and Thanksgiving proclamations. If a "patriotic or ceremonial occasion" is a sectarian religious event, it might very well be a problem.

The footnote is vague enough that it is not totally clear what we are talking about. An obvious instance is the then recently added "under God" to the Pledge of Allegiance. Public school students daily proclaiming God's role in this country via a state-crafted statement of belief is problematic. 

The fact it is "patriotic" is the whole point. What is an official establishment of religion if not a statement that patriotism involves following a certain religion or religious belief? "Americans believe in God."

Engel is obviously wrong since it involves a state-crafted (bland) prayer. Justice Stewart argued it was a matter of free exercise to allow students to say it. But, it is absurd not to think it problematic that the government crafted a prayer for use in public schools. Is that what we want them to do?  

Nonethless, the flag salute case shows that "test oaths" can come in various forms. A student can skip the pledge if they are conscientiously opposed, including atheists. The usage of "under God" is a separate establishment issue.

Torasco reminds us that the free exercise of religion includes non-belief in God. We still do not quite understand this, especially when Christian nationalism is promoted.