Every once in a while, someone finds out that there are seven states in the United States that have laws prohibiting atheists from serving in public office. Maryland is one of those states. The British colony was founded in 1634. To say that tensions between Catholics and Anglicans in England ran high at that time would be an understatement. The founder of Maryland, Cecilius Calvert, was a Catholic who intended the colony to be a potential refuge for Catholics should those tensions require one.

From Maryland’s earliest days, Cecilius Calvert had enjoined its colonists to leave religious rivalries behind. Along with giving instructions on the establishment and defense of the colony, he asked the men he appointed to lead it to ensure peace between Protestants and Catholics.

In order to protect the interests of Catholics, Anglicans and Puritans, in 1649 Maryland passed the second law regarding religious tolerance in the British North American Colonies, The Maryland Toleration Act, or the Act Concerning Religion. In one sense, the law can be considered progressive since it protected all Trinitarian Christians. At the same time it specifically allowed the persecution of all others. During the English Civil War, the act was revoked and Catholics were barred from voting in the colony.

While the law did not secure religious freedom, and while it included severe limitations, it was nonetheless a significant milestone. It predates the Enlightenment, which is generally considered to be when the idea of religious freedom took root, and stands as the first legal guarantee of religious tolerance in American and British history. …. It was not until the passage of the First Amendment to the Constitution over a century later that religious freedom was enshrined as a fundamental guarantee…. Thus, despite its lack of a full guarantee of religious freedom or broad-based tolerance, the law is, “a significant step forward in the struggle for religious liberty.”

With the Maryland Toleration Act we can see that the course of liberty of conscience in regards to religion has not been a perfectly straight line from oppression for all but the government sanctioned sect to liberty for all.

In 1776, Maryland, now a state, wrote its constitution which provided only that “all persons professing the Christian religion are equally entitled to protection in their religious liberty.” Article 35 stated, “No other test or qualification ought to be required on admission to any office of trust or profit than such oath of support and fidelity to the State… and a declaration of belief in Christian religion.”

In 1826, a bill was introduced with the intention of extending the right to serve in public office to Jews, ‘but it still required that an officeholder profess belief in a “future state of rewards and punishments.” This requirement was retained in the Maryland Constitution of 1851 and was not dropped until the present Maryland Constitution was adopted in 1867.’ It is that constitution from 1867 which contains the article which is frequently quoted as evidence that atheists cannot serve in public office in Maryland.

Art. 37. 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; nor shall the Legislature prescribe any other oath of office than the oath prescribed by this Constitution.

In 1960 an atheist, Roy Torcaso was appointed notary public. He refused to make a declaration of belief in the existence of God and his appointment was revoked. The case made it before the Supreme Court of the United States as Torcaso vs. Watkins.

The Court unanimously found that Maryland’s requirement for a person holding public office to state a belief in God violated the First and Fourteenth Amendments to the United States Constitution.

So why can article 37 still be seen in the Maryland Constitution? According to Brian Palmer writing on Slate:

Judges cannot reach into statute books and erase laws. Some state legislatures proactively repeal unconstitutional laws, either one at a time or in batches after a few of them pile up. Others just leave them there….

State constitutions, which are more difficult to amend than ordinary statutes, are rife with unconstitutional language. Arkansas, Pennsylvania, South Carolina, Tennessee, and Texas, along with North Carolina, all have language suggesting that atheists are barred from office.

The Supreme Court justices are pretty tolerant of states thumbing their noses at them from afar, but they will not tolerate meaningful resistance. After the Supreme Court declared school segregation unconstitutional in the landmark 1954 case Brown v. Board of Education, Arkansas passed a series of laws attempting to nullify the federal decision, forcing the court to issue a second decision emphasizing that the nine justices, and not the states, were the final arbiters of constitutionality.

Antiquated laws that are still on the books are not without potential problems, however it is not correct to say that there are places in the United States where atheists are currently barred from holding public office.

I’ve come across this statement several times recently so it seemed worth while to do an entire post on it.