We have examined the laws of nature and of nature's God and two of its positive prescriptions in the Declaration of Independence: equality and unalienable rights. The rules of legal equality and of unalienable rights impact many different substantive areas of the United States Constitution and the constitutions of the several states. This Article has elected to generally focus consideration of the rule of legal equality and unalienable rights in the context of religious tests and free exercise as expressed in the Constitution and the Bill of Rights. Thus, section III examines the requirements and prohibitions of the United States Constitution's oath requirement in article VI, and section IV explores the first amendment.²⁴

A.   An Oath Implies an Appeal to God

Article VI of The United States Constitution requires that certain public officers "shall be bound by Oath or Affirmation, to support this Constitution, but no religious test shall ever be required as a qualification to an office or public trust under the United States." What is an oath? What does it do and why is it required? How does it differ from a religious test?

In its most basic sense, an oath serves as the strongest guarantee of good faith performance that can be given between two parties. The oath creates a unity of intent, words and conduct. It binds the three together into one. Hugo Grotius, the distinguished father of international law has observed that "[t]he person who takes an oath is bound in two ways: that his words should agree with his intent, . . . and secondly, that his actions should be consistent with his words."²⁵ If a man's words do not agree with his intent then he swears falsely. If his actions do not agree with his words then he perjures himself.

Noah Webster's 1828 American Dictionary of the English Language also defines the law of oaths. It defines an oath as,

a solemn affirmation or declaration, made with an appeal to God for the truth of what is affirmed. The appeal to God in an oath, implies that the person imprecates his [God's] vengeance and renounces his favor if the declaration is false, or if the declaration is a promise, the person invokes the vengeance of God if he should fail to fulfill it.²⁶

An oath is not a naked affirmation or promise. An oath is an affirmation or promise made "with an appeal to God." If no appeal to God is present, the affirmation cannot be solemn, nor the truth of what is affirmed made secure to remove controversy. What is the substance of such an appeal to God? The appeal to God implies that the person seeks God's favor to fulfill the terms of the oath. The appeal also implies that the person taking the oath renounces God's blessing and should rightfully come under God's direct judgment or punishment if there should be a failure to fulfill the terms of the promise.

Black's Law Dictionary mirrors this definition's essential features. "The central idea of an oath would seem to be, however, that of a recognition of God's authority by the party taking it, and an undertaking to accomplish the transaction to which it refers as required by his laws."²⁷ The legal maxim Jus Jurandi Forma Verbis Differt, Re Convenit; Hunc Enim Sensum Habere Debet: Ut Deus Invocetur is instructive. "The form of taking an oath differs in language, agrees in meaning; for it ought to have this sense: that the Deity is invoked."²⁸ The general sense of an oath or affirmation is that the Deity is invoked, his blessing is sought, and his vengeance is warranted if the deponent (or affiant) should fail to fulfill his or her obligations.

While an oath by definition is taken before God and presumes that God is relevant to its object, Hugo Grotius adds that an oath sworn in the name of a thing created by God has the same effect, though the words differ. Thus, to swear by heaven or earth or the universe is to swear by the things which God has created. Grotius even says that an oath is binding even if sworn to by a false god. He remarks:

if any one has sworn by false gods the oath will be binding. For although possessed of false notions, he nevertheless has a respect for divinity under a general aspect; and so, if perjury has been committed, the true God interprets it as done to His harm.²⁹

Grotius is quick to add, however, that the general custom was not to propose an oath in such a form. He says:

holy men never proposed an oath in such a form, and still less swore in that way . . . ; but nevertheless, if those with whom they had dealings could not be induced to take an oath in any other way, they made contracts with them, and they themselves would swear as their duty required, but they would accept from the others such an oath as could be procured.³⁰

What can be gleaned from these observations? First, that an oath is by definition, a mechanism that is intended to demonstrate good faith performance by reference to something or someone greater than the affiant or deponent. Second, the something or someone reflects a divine being or his creation. Third, that in arm's length transactions (contract), parties were free to swear by anything or anyone greater, at their own discretion, though the general rule was to swear by Almighty God, the Creator. Fourth, that perjury triggered a penalty including curses or the divine judgment of God. Fifth, a naked unhallowed promise is not an oath in either form or substance for it invokes nothing or no one greater than the one who promises.

B.   The Constitution's Article VI Oath Implies An Appeal to God

It has already been noted that Article VI of The United States Constitution contains an oath that certain public officers "shall be bound by Oath or Affirmation, to support this Constitution, but no religious test shall ever be required as a qualification to an office or public trust under the United States."³¹ This oath requires support for the federal Constitution as the supreme law of the land. Senators, Representatives, the members of state legislatures, and all executive and judicial officers are required to take the oath to support the supremacy of the Constitution, and not their own opinions or the platforms of their political parties.

The oath is also a condition that must be met prior to assumption of an office of public trust. If an individual is elected or appointed to a public office, he or she must take an oath prior to entering into the office. If an official refuses or is unable to take the oath, then he or she fails to meet the condition and is ineligible to assume the office though he or she may otherwise be qualified. Thus, the requirement of an oath can preclude otherwise qualified individuals from assuming office. It is clear that an individual who refuses "to support this Constitution" will be ineligible for office.

In electing to secure fidelity to the Constitution, the framers recognized that civil government has a legitimate interest in ensuring officials support the Constitution, but could this interest be secured by requiring that the affiant to: 1) swear by God or "show respect for divinity under a general aspect," and/or 2) affirm various religious tenets?

It is clear that an oath is compulsory by definition. Anyone who seeks to hold public office must swear or affirm to its terms. On the question of compulsion, therefore, it must be acknowledged that requiring that the affiant to swear or affirm support for the Constitution was regarded by the framers as entirely appropriate. The only question that remained, therefore, pertained to the means of performance. What means would constitute a suitable guarantee of performance? What mechanism would best ensure that the oath to support the Constitution would be taken with integrity--that the unity of intent, words, and conduct would be bonded together to remove all doubt about performance?

At least three options were available. Let us consider them as questions. First, would an unhallowed naked promise be sufficient to guarantee support of the Constitution? Second, would acknowledgment of God or "respect for divinity under a general aspect" constitute a sufficient guarantor? Or third, should affirmation of various religious tenets be required unto the end of ensuring that the oath is taken with integrity and that good faith performance could be expected?

In answering these question the framers of the federal Constitution rejected the mechanism of an unhallowed naked promise as a sufficient guarantor of the integrity of swearing or of performance. By asserting that officials "shall be bound by Oath or Affirmation, to support this Constitution," they selected the legal device of an oath as a condition of eligibility, and therefore, by definition (or default), elected to make acknowledgment of God or "respect for divinity under a general aspect" a sufficient guarantor of performance. By adding, however, "but no religious test shall ever be required as a qualification to an office or public trust under the United States," they rejected affirmation of various religious tenets as a mechanism of ensuring that the oath would be properly performed with integrity.

The oath articulated in article VI therefore carries with it this sense: that God is invoked, his blessing sought and his vengeance justified if the deponent should fail to fulfill his or her obligation "to support this Constitution." The oath or affirmation "to support this Constitution," however does not incorporate an affirmation of religious tenets or doctrine and therefore avoids the indica of a religious establishment.

If the article VI oath is taken without the sense that God is invoked, then the oath is either sworn to falsely in that the words do not agree with the intent, or is susceptible to the charge of perjury if actions do not agree with words. If the unity of intent, words and conduct cannot be maintained then false swearing becomes perjurious. Upon conviction, removal from office is warranted for perjury because perjury renders the official's word hypocritical and untrustworthy. The official's guarantee becomes worthless.

If, on the other hand an individual takes the "oath" with the publicly declared intention that he is not making an appeal to God, or that God's blessing is not sought or that God's vengeance is not justified, then such an individual does not commit false swearing or perjury. Such an individual, however, has not taken an oath. For while the form of taking an oath may differ in language, it must have "this sense: that the Deity is invoked." An oath taken contrary to this sense is no oath at all. It is but an unhallowed naked promise and contains no guarantee of performance that satisfies the legal predicate.

Article VI of the Constitution requires more than a promise. It requires an oath. An unhallowed naked promise (irrespective of its form) will not suffice. If an individual fails to conform his declaration to the sense of an oath, he fails to take an oath in the sense the Constitution requires. Consequently, that individual must be denied admission to the public office he or she seeks.

C.   Requiring an Appeal to God is not an Unconstitutional Religious Test

What is apparent from the preceding discussion is that the Constitutional requirement of an oath rightly understood as involving an appeal to God as a guarantee of performance, cannot be construed to be a religious test. The Constitution requires an oath "but" prohibits a religious test as a qualification for public office. The key word is "but"--"but no religious test shall ever be required as a qualification . . . ." The word "but" indicates that the oath retains its essential feature--an appeal to God as a guarantee of performance of what is asserted—but the terms of the oath are not to be clouded by the sectarian tenets of any particular religion. The required oath may embrace only the essence of its purpose--invocation of the Creator God as a guarantee of performance.³² The Article VI oath cannot be made to expand the guarantee to some other purpose such as questions relating to eternal security, the infallibility of the Bible, belief or disbelief in Jesus Christ or points of doctrine. The federal Constitutional oath is limited to affirmation that the official will support the Constitution, and not that he or she will support the tenets of any particular religious teaching.

D.   Prohibiting a Religious Test is Consistent with the Law of Nature

Article VI's ban on a religious test protects the religious liberty of otherwise qualified public officials who happen to adhere to the tenets of a religion (or no religion) which is at variance with the beliefs of those who control the various legislatures. Without this Constitutional protection, legislative officials could rewrite the oath to suit their own sectarian or political ends. An otherwise qualified official could be excluded through statutory imposition of a religious test, the terms of which that party who controlled the legislature know would render an otherwise qualified official ineligible. For instance, the 1682 Frame of Government of Pennsylvania required that officials profess "faith in Jesus Christ" as a necessary qualification for public office.³³

The federal Constitution, however, took a different approach. Public officials may not be required to, or prohibited from, professing "faith in Jesus Christ." A public official may not be required to subscribe or required to renounce the substance of any particular religious tenet. A public official may only be required to subscribe "to support this Constitution" and to do so by "Oath or Affirmation" which by definition requires an appeal to God the Creator.

Thus, the prohibition on a religious test protects the free exercise of religion of a public official in two ways. First, the official's religious liberty is protected from those who seek to force a profession of doctrinal belief. Second, religious liberty is protected from those who seek to compel a renunciation of doctrinal belief. Moreover, by providing that no one religious body or sectarian teaching could be made orthodox in matters of civil administration, the prohibition on religious tests equally precluded official sectarian control over the faith of civil officials. The idea that civil governments were instituted to protect religious liberty on an equal basis and prohibit civil coercion or interference with the free exercise of religion was effectively in place well before the first amendment came along.³⁴

President Thomas Jefferson understood that religious liberty was a natural or unalienable right. He also recognized that such a right would be secured if religious tests were disallowed. This view, however, did not emasculate the nature or purpose of an oath.³⁵

E.   The Supreme Court has Confused an Oath with a Religious Test

The Declaration of Independence referred to the importance of the "Creator," the laws of "Nature's God," the "Supreme Judge of the World," and "divine Providence" in establishing the United States. The Declaration's reliance upon the "Creator," laws of "Nature's God," the "Supreme Judge of the World," and "divine Providence" was considered by its framers to be an entirely lawful and appropriate civil declaration. These were not the sum and substance of any religious establishment. The Constitution's article VI required an oath to support the Constitution that carried with it a necessary appeal to God as a guarantor of performance to support the Constitution. This requirement was also considered by its framers to be an entirely appropriate civil requirement. Article VI, however, prohibited the civil government from imposing a religious test. The imposition of a religious test was not considered a lawful or appropriate concern of civil government.

It is quite natural that these references in the Declaration should be followed by a Constitution that requires an oath which indicates that an appeal to God in taking the oath is necessary. Nevertheless, the Supreme Court has arrived at precisely the opposite conclusion in Torcaso v. Watson.³⁶

In Torcaso the Court had to decide the federal Constitutionality of Article 37 of Maryland's Constitution. That provision required that "[N]o 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 . . . ." When considered in light of the previous discussion, Maryland's Article 37 clearly equated belief in the existence of God with a religious test as a matter of state constitutional law. If a person wanted to serve in an office (at issue was a notary public) in Maryland, he or she had to first declare a belief in the existence of God. This requirement, however, was objected to on the grounds that it constituted a religious test as a matter of federal constitutional law, i.e., it violated article VI's requirement that "no religious test shall ever be required as a qualification to an office or public trust under the United States."

The Court held that refusal to affirm belief in God was not a valid disqualification for holding a state commission as a notary. In other words, those individuals who would not acknowledge belief in God, could not be denied their office if they were otherwise qualified. Mr. Justice Black declared that the state's constitutional requirement "sets up a religious test which was designed to . . . bar every person who refuses to declare a belief in God" from holding public office in Maryland.³⁷

Justice Black was correct in pointing out that the state's constitutional requirement "was designed to . . . bar every person who refuses to declare a belief in God" from holding public office in Maryland. This, however, was not the issue. The issue was whether as a matter of federal Constitutional law under article VI, Maryland's belief and declaration requirement was a prohibited religious test. When Maryland's constitutional provision and its characterization are considered in light of the historical recognition that an oath by definition involves an appeal to God as a guarantor of performance, then emphatically neither Maryland's own constitutional characterization of its oath as an exempt religious test, nor its requirement that officials must declare a belief in God, can be said to control the construction of article VI.

The Court's holding in Torcaso cannot be reconciled with the purpose of an oath. An oath "ought to have this sense: that the Deity is invoked." If an oath is intended to be secured by an appeal to God as a mechanism to ensure the faithful discharge of the office, an official that refuses to acknowledge God's existence cannot be said to have complied with that means. Belief in or an appeal to God is a necessary prerequisite to taking an oath. The Torcaso Court, however, incorrectly equated an oath that by definition requires its terms to be affirmed by invocation of the Deity, with a sectarian or religious test.

It could be argued, as Grotius observed, that an oath allows "respect for divinity under a general aspect," and cannot be confined to a declaration in the existence of God alone, and therefore Maryland's constitutional requirement was too narrow. It may also be argued that if those whom the people of the State of Maryland called to public office "could not be induced" to take an oath through the invocation of God, then it is permissible to accept from that official such an oath as can be procured and thus Maryland's constitution cannot require the invocation of God or a deity, but only such an invocation as the official is willing to give.³⁸

While these arguments carry some weight as policy measures, they do not make any inroads on the proposition that the framers were free to select among the means which they considered best to secure performance of the office's obligations. They could have adopted any one of a number of mechanisms to remove doubt from among the people about whether or not a given official would actually perform the obligations of his or her office or simply be a tyrant. They elected, however, to achieve this objective by an appeal to God as reflected in the choice of an oath. They rejected religious tests since such were too amenable to partisan abuse. They rejected naked promises since such were not guarantors of much of anything (as any first year contracts student should know). The framers selected the oath as the mechanism and figured that this would serve as the strongest guarantee of good faith performance that can be given between two parties. Whether the framers chose wisely or foolishly is an interesting question. It is not, however, a question over which an Article III court has jurisdiction.

If Maryland, however, wished to select a simple naked promise as a guarantor of its own state functions and for some reason thought it wise to do so, it could certainly do so without interference from article VI. If Maryland simply adopted a promise as its guarantee mechanism, its officials would nevertheless be required to also conform to the federal standard of article VI which invokes God because that article applies to officers both of the United States and the several states. Maryland, however, could not adopt the more rigorous religious test criteria without running afoul of article VI.

The practical effect of the Court's reasoning in Torcaso is two fold. First, the Court obliterated the definition of an oath through secularization. The oath was obliterated through secularization by mistakenly equating belief in God with specific religious tenets and tests. The word "but" in article VI was intended to preclude such a result, but it was neglected.

Second, the Court voided the oath's purpose of guaranteeing performance of a civil office through invocation of the Creator. This occurs when the deponent, no longer required to swear or affirm before the Creator, now only promises that he will guarantee his own performance on the weight of his own word. This "guarantee" has the practical effect of reducing an oath taken with an appeal to God, into an unhallowed naked promise--precisely what the Constitution avoids. How wise is it for a nation to be governed by public officials whose promise of constitutional fidelity is based only upon an unhallowed naked promise? Not even the performance of contracts are assured in such a pointless manner. Consideration is needed. What nation, therefore, would willingly choose to be governed by such hollow promises?

In effect, the Court has declared the broader evolutionary and humanistic principle that the Creator of the Universe is Constitutionally constrained to a narrowing and centripetal sphere of religious dogma. Having abandoned the roots of the American Order in the laws of nature and of nature's God, the Court no longer has an adequate legal framework for distinguishing between the universal necessary and proper relationship between God and civil government discussed in sections I and II supra, and the Constitutionally impermissible relationship between religion and the civil government.

The Supreme Court, with the untiring assistance of lawyers urging evolutionary and humanistic notions of religious liberty upon it, has lumped God and religion all together for Constitutional purposes. While God is certainly expressed through religion, the Creator of the universe and lawgiver of nations is not limited to religion. Neither, as the Court is predisposed to conclude, is every reference to God an unconstitutional establishment, or as the Court's dissenters habitually argue, is every reference to God Constitutional simply because it comports with American history and tradition.³⁹

F.   Article VI is a Prelude to Free Exercise and Non-Establishment

The laws of nature, the Declaration's rule of equality and unalienable rights, and article VI's requirements and prohibition are conceptual preludes to the first amendment. The Declaration's reliance on equality and unalienable rights, and article VI's recognition of God, yet prohibition on a religious test, contain the seeds that also animate the first amendment.

Article VI's prohibition on religious tests protected public officers from compulsory profession or renunciation of religious belief as a prerequisite to holding public office, thereby protecting their unalienable right to the free exercise of religion and effectuating the no-establishment principle. Moreover, by providing that no one religious body or sectarian teaching could be made orthodox in matters of civil administration, the prohibition on religious tests equally disestablished official sectarian control over the faith of civil officials. The idea that civil governments were instituted to protect religious liberty on an equal basis and prohibit civil coercion or interference with the free exercise of religion was effectively in place.

The foundations of the first amendment were laid in article VI to the extent that it Constitutionalized the decisive and controlling distinction between the proper relationship of God to civil government, and the prohibited relationship of religion to civil government. Unfortunately, the Supreme Court in Torcaso blurred this distinction early on and therefore the distinction is not clearly understood today. Consequently, cases decided under the first amendment follow obscure conceptual suit with a vengeance.