The Religious Test, Equal Protection, and Free Speech Clauses

Abstract

The First Amendment's Free Exercise and Establishment Clauses are undoubtedly the most prominent constitutional provisions governing the relationship among religion, the citizenry, and the state. They are, to be sure, frequently described as “ the Religion Clauses.” But they are not the only constitutional provisions that govern this relationship. There is, for example, another and often overlooked clause that expressly deals with religion – the only provision of the unamended Constitution that does so – namely, the Religious Test Clause of Article VI. In addition, the equal protection guarantees of the Fifth and Fourteenth Amendments have been held to protect against discrimination on the basis of one's religious affiliation or conduct. Finally, there is an extensive interrelationship between the First Amendment's religion clauses, especially the Free Exercise Clause, and the best-known provision of that amendment, the Free Speech Clause. This chapter surveys these additional constitutional provisions and specifically how they govern or relate to matters of religion. The Religious Test Clause In the last section of the original Constitution's last substantive article, one finds the following provisions: The Senators and Representatives … and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. The latter clause, which clearly modifies the former, is commonly referred to as the “Religious Test Clause” or, among some scholars, the “No Religious Test Clause.” The Religious Test Clause is perceived by many as an unfamiliar or even irrelevant provision – at best, a distant and curious relative of the First Amendment religion clauses. Perhaps befitting its contemporary obscurity, the Religious Test Clause seems largely to have been uncontroversial when proposed during the drafting of the Constitution. Charles Pinckney of South Carolina submitted an initial draft on August 20, 1787, providing that “[n]o religious test or qualification shall ever be annexed to any oath of office under the authority of the U.S.” After slight modification of the wording, a revised version was then approved on August 30 without significant dissent.