Leo Pfeffer: Thank you, Mr. Chief Justice. I should like to return for quite a moment to Mr. Justice Stewart's question regarding the inclusion of non-theistic belief in the scope of the term "religion". I think this case illustrates very well the growing -- the expanding interpretation of the term "religion". Originally, the State of Maryland required that all its public officers --
William J. Brennan, Jr.: (Inaudible)
Leo Pfeffer: Yes, sir.
William J. Brennan, Jr.: (Inaudible)
Leo Pfeffer: It includes -- it includes -- yes, that's part of my argument. It includes certainly non-theism. At the present time, I'm asserting that it includes non-theism. I will shortly assert that it includes atheism as well, but as of now, I am asserting that it includes non-theism which is not necessarily atheism. Now, originally, the Maryland law required the declaration of belief in the Christian religion. This was -- their initial form in 1776. In the middle of 19th century, about 1850, as a result of a good deal of agitation that passed, it was known as the Jewish law, which permitted a person who was of the Jewish faith to take the oath even though he did not believe in the Christian religion. He will stand that he should -- if he is a Jew, the law said, “He can't profess a belief in the future state of rewards and punishments.”
William J. Brennan, Jr.: A what?
Leo Pfeffer: A -- a belief in the future state of rewards and -- and punishments. If he professes to be a Jew, that was the exact language, but if he professes to be a Jew, he may declare a belief in the future state of rewards and punishments. These brought in all Christians presumably and all Jews or at least, those Jews who professed their belief in the future state of rewards and punishments. It excluded Moslems or others who were neither Christians nor Jews, then came the present law which requires simply a belief in the existence of the -- of a God. So that the term "religion" has been expanded originally on Christian to Jew, to perhaps Moslem or -- or -- and now, I am suggesting to the -- Your Honor that within the Constitution, it must include all those who are of a religion whether or not, that religion encompasses or requires a belief in the existence of God. I suggest too that within the meaning of the First Amendment, it was -- as it interpreted by this Court as barring preferential aid to religion, barring from public office of others who are not within the religious groups constitutes preferential aid. Various cases of this Court have interpreted preferential aid to encompass, for example, permission to use public parks which are barred to other religions, like Fowler against Rhode Island or the permission to use public -- schools for religious teachings or perhaps tax benefits. Certainly, I think that a statutory requirement excluding from public office, all those except in the preferred groups, constitutes preferential aid to religion within the compass and meaning of the First Amendment's No Establishment Clause. I should like to go further --
Potter Stewart: You talk in terms of groups, how about an individual who wasn't associated with any organized group at all?
Leo Pfeffer: I wouldn't -- I would contend that the -- this would apply equally to individuals.
Potter Stewart: How about an individual atheist, you said, “I -- I affirmatively disbelieve in any religion or in any Supreme -- Supreme Being?”
Leo Pfeffer: That's exactly what my second --
Potter Stewart: “I'm associated with nobody else. This is just my individual active non-belief."
Leo Pfeffer: This --
Potter Stewart: Now, would he be -- would that -- would that non-belief be a religion?
Leo Pfeffer: That non-belief would not be a religion, in the sense of preferential aid to particular religion over other religions. It would however be within --
Potter Stewart: I may -- I'm talking about the free exercise. Is that belief (Voice Overlap) --
Leo Pfeffer: Well, surprisingly enough, I think the Free Exercise Clause as it was understood by the -- the Fathers of our Constitution encompass those without religion. And I think perhaps the best illustration of that, I have some several of my brief, but I just like to read this one brief sentence from the language of Mr. James Iredell who thereafter, became a Justice of this Court. And he said, in discussing in the constitutional -- in the -- North Carolina Convention on the adoption of the Constitution and he met the argument that the Article VI appeared to allow those without religion to become president of the United States or to hold office. And he says as follows, “But as objected that the people of America may perhaps, choose representatives who have no religion at all and that pagans and Mohammedans may be admitted to -- into office.” Then he says "But how was it possible to exclude any set of men, without taking away that principle of religious freedom, which we ourselves so warmly contend for?" His -- his understanding of the principle of religious freedom encompasses those having no religion at all. And therefore, it's quite clear that he did, and that there were many others too, I think there was a good deal of discussion, as set forth in my brief, could those discussions both in the Constitutional Convention itself and the state legislatures and the state conventions as to the first, the failure to mention "God" in the Constitution and second, the opening up -- the federal office or government law office to those who do not believe in God by Article VI. And a clear understanding of everybody there, at least it was undisputed that encompassed within the protection of Article VI, this was before the First Amendment, encompassed within the protection of Article VI are those who disbelieve in the existence of God and who have in the words of Iredell, "No religion at all."
Hugo L. Black: Well, that's a different argument, isn't it, to the -- what I understood you were asked about -- I understood you ask, you were claiming that -- asserting that -- maybe you aren't, that atheism is itself a religion, quite different to say that the idea of religious freedom, would leave a man the right?
Leo Pfeffer: I don't think --
Hugo L. Black: It's not to be religious at all.
Leo Pfeffer: I don't think it was necessary and I do not contend that atheism is a religion. I'm contending only and I think the only issue before this Court is whether the constitutional provisions against laws respecting an establishment of religion or for having the free exercise of religion, encompassed the atheist. I have suggested that's a ban on establishment, encompass a non-theist. I'm prepared now to go one step further and assert that it encompasses as well, those who disbelieve, actively deny the existence of a Supreme -- of a God.
Felix Frankfurter: Do we have to decide here what -- what the content of religion is or what it isn't? We've got a very specific question here, whether -- whether Maryland may require to the Notary Public, taken oath, but we believe in a deity. And therefore, of course, we must -- it -- to deny that right to Maryland, it must be predicated on something, as far as I'm concerned, it can't be predicated on anything except the Fourteenth Amendment, with all that the Fourteenth Amendment draws unto itself.
Leo Pfeffer: Yes, I agree --
Felix Frankfurter: Would you agree with that?
Leo Pfeffer: I would agree with that.
Hugo L. Black: But I only understood that I disagree with that.
Leo Pfeffer: Well, I would agree with that. It's -- [Laughter]
Hugo L. Black: One member of the Court believed that, doesn't necessarily require you to argue within that compass.
Felix Frankfurter: I merely asked you whether you agree or disagree? I -- I, of course, couldn't speak for anybody else, as I'm authorized when the question is put from the bench, it's not authorized except for the individual to speak.
Leo Pfeffer: I'll agree to the extent that leaving aside the applicability of Article VI, I would say that -- that which the Constitution forbids a federal government under the First Amendment, I think under the Fourteenth, it equally forbids a state, whether we say that makes --
Felix Frankfurter: That doesn't contradict anything I've said. I've said I can only find that the Fourteenth Amendment governs the State. You don't disagree with that?
Leo Pfeffer: No.
Felix Frankfurter: You may hold and include the First.
Leo Pfeffer: Except for reserving for the moment the applicability of Article VI.
Felix Frankfurter: Certainly, but if --
Leo Pfeffer: Reserving that for a moment I would say that there was nothing outside the Fourteenth Amendment, except insofar as the Fourteenth Amendment encompasses the First, nothing outside the Fourteenth Amendment which would bar a state from imposing a religious test of any kind. Now, my -- I suggest that the First Amendment of the Constitution as -- as made applicable to the State by the Fourteenth, includes within its protection those who affirmatively disbelieve in the existence of a Supreme Being. I think that the -- the discussions which surrounded the adoption of the Constitution and the -- particularly the Article VI in the failure to mention God, indicates that -- that this wasn't in the mind of the Fathers of our Constitution.
Earl Warren: Mr. Pfeffer, how about the argument of -- of the State that the Sixth Amendment argument is not open here, because you abandoned it in the -- in the Court of Appeals and the Court of Appeals expressively said that it was not dealing with that section.
Leo Pfeffer: Mr. Chief Justice, I should like if -- with your permission, to leave the --
Earl Warren: You -- you may.
Leo Pfeffer: -- this argument to my associate who was discussing --
Earl Warren: You may.
Leo Pfeffer: -- that -- that aspect of the --
Earl Warren: Yes, perfectly all right.
Leo Pfeffer: Now, I want to say that were it not for some language in Zorach against Clauson, decided by this Court in 1952. Specifically, the statement that we are a religious people whose institutions presuppose a Supreme Being, from which both the court below and the State of Maryland in its brief, rely heavily. Or if not for that statement, I don't think there would be serious argument that the present development of constitutional law on the field of religious validity in the First Amendment, encompasses within this protection, the antitheist not merely the non-theist, the antitheist, whether we accept it as part of the establishment, for the free exercise or even perhaps as Mr. Justice Jackson suggested at one time, the freedom of speech --
Hugo L. Black: I didn't understand (Voice Overlap) --
Leo Pfeffer: -- provision.
Hugo L. Black: -- what you said -- you referred.
Leo Pfeffer: I beg your pardon? I said were it not for the -- the statement in Zorach against Clauson, that we are a religious people whose institutions presupposes Supreme Being, I think it would not be seriously contended that the atheist is outside the scope and ample protection of the Bill of the Rights. This language, whatever it means, I do not think can be interpreted as the Court of Appeals of Maryland seeks to interpret it and as the State of Maryland's brief seeks to interpret it, cannot be interpreted to mean to authorize Government or federal law state, to compel a belief in a Supreme Being as a prerequisite for Government or office. Were it so -- were it so, it would be directly contradicted by Article VI, which specifically prohibits such a test of -- of oath in respect at least, to the Federal Government. Now, I think the whole history of establishments both in Great Britain and the United States indicates quite clearly that a bar -- a test for -- religious test for office, was an inexplicable element of what is meant by an establishment of religion. The -- every established religion had -- if it had nothing else, had two factors. One, compulsory support of the so-called established religion whatever it is, also important to taxation. And second, either barring those not of the particularly favored religion or at least giving preference to those of the favored religion in respect to public office. The qualification of adherence to religion as a qualification of public office is the inescapable stamp of establishment of religion. And I think it is quite clear that when the arguments in the state Constitutional Conventions regarding the Article VI took place, the basis for the defense of that provision was that the jurisdiction of secular government, the private government, the political government under our Constitution, must be limited to the secular purposes set forth from the preamble. That the Government has no jurisdiction -- these are -- master of phraseology. It has no jurisdiction in the matters of religion. And therefore, it cannot determine public office on the basis of belief or non-belief. It is its -- it has anyone's active government in the United States which I think marks the end of establishments, it was the Virginia Statute of Religious Liberty enacted in 1786, upon which the First Amendment of this Constitution was based as this Court has said. And I think it is highly significant that the Virginia Statute of Religious Liberty proscribed as aspects of establishment, which it was destroyed to -- to -- two powers of Government, one, the power to compel monetary taxation for religion. The other's the power to disbar from Government law office those not within the favored religion. And I will just take this one moment to read from this great statute.“Therefore, just as the proscribing of any citizen as unworthy of public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he professed or renounced this or that religious opinion in depriving him injuriously of those privileges and advantages to which in common with his fellow students -- fellow citizens he has a natural right.” This is the preamble. Then the upward section read as follows, “No man shall be enforced, restrained, molested or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess and by argument to maintain their opinion in mass religion. And that the same shall in no way diminish, enlarge or affect their civil capacities.” This is what we are urging here. We are urging that the State of Maryland cannot use the beliefs -- religious beliefs to enlarge all prejudice or diminish in any ways, civil capacities. Now, we also urge and this is inextricably connected with the first ground, that a law requiring belief in God has a condition for serving public office, consonant to a law prohibiting the free exercise of religion. I've already suggested that the First Amendment and the free exercise as well as in the establishment provision, encompasses non-religion, non-theistic religion as well as religion, the Court need not go any further than that. If wishes to, I would go further and says -- say it encompasses the denial of the existence of a God as well. The State of Maryland argues and it's been argued by the Court of Appeals below. First that (Inaudible) in the argument that the First Amendment protects freedom of religion, not freedom from religion, I do not think this is an accurate understanding of what the First Amendment was intended to protect. But more important, the State suggests that there is no infringement upon free exercise of religion. Mr. Torcaso says this -- court below in the State of Maryland, can believe or disbelieve anything he wants. He has a right, any kind of right to believe whatever he wants, but he cannot be a Notary Public or other public official in the State of Maryland, unless he declares a belief in God. And the denial or withholding from him of his privilege to serve the State of Maryland in particular capacity, does not infringe upon his free exercise of religion. I think that this is not correct. I think that the withholding of the right or privilege, I don't think it's important why it's called, the holding of -- the withholding of the right of privilege to serve the Government constitutes an impediment to the free exercise of religion if that grant or denial is conditioned upon the acceptance or rejection of any particular religious belief. I think there are quite a number of cases, it set forth in our brief, which indicates that the concept of free exercise of religion goes much beyond putting a man in jail, if he does not profess a particular religious belief or if he professes a contrary religious belief that the sanction of barring from public office constitutes an impairment or an infringement upon the free exercise of religion. I think it's important also to note that we are concerned here not with action, but with belief. The State of Maryland is not even going too far, so far to say that anybody who openly -- avows atheism or preaches atheism shall be barred. It demands that you believe in the existence of God and if you don't believe in the existence of God, you are barred from serving. For the first time, a state has imposed a test in respect to religious belief. Now, this Court has said that, “Freedom of belief is as absolute -- at least as absolute as any freedom can be.” I don't think it's necessary to --
Hugo L. Black: Are -- are you correct in that statement that it's the first time that's occurred and is to be considered?
Leo Pfeffer: That's the first time before this Court, as -- as far as I know.
Hugo L. Black: Well, you mean before us?
Leo Pfeffer: Before this Court. That's what I meant, before this Court. That's the first time before this Court -- this Court has had an opportunity to pass upon the absoluteness of religious belief. I do not think necessary for this Court to pass upon the question of the application of political belief that presents different problems. I am saying only that certainly, certainly religious belief, religious belief where it is not connected with manifest over a conduct. Even oral expression, religious belief is and must be absolute under the First Amendment as both Federal Government and the Fourteenth as encompasses -- as it incorporates the First in respect to the state government. Nothing I think could be more fundamental than that in our democratic system. The Government has no power to control what man believed in respect to the (Inaudible) or respect to the supernatural, in respect to the deity, may or may not determine what he believes and whether we have a right to assassinate the President of the United States or to use labor unions for the purpose of promoting political beliefs. That's a different question, but certainly it may not regulate belief or oppose a disqualification, because of -- of any belief one has in respect to his relationship to whether the gods may or may not be.
Potter Stewart: What are the duties or functions of Notary Public in Maryland?
Leo Pfeffer: The duties of a -- of a Notary Public in Maryland is to administer oath or declarations. The -- and the one who takes an oath or declaration for a Notary Public and found thereafter to lie, is subject to the laws of perjury. The -- these functions are -- the only functions of a Notary Public, but this power to administer oath is not limited to Notary Publics. Practically, I would say the overwhelming majority of public officials above the lowest ministerial section -- class have power to administer oath.
Potter Stewart: And -- and the statute according to this -- Maryland Constitutional provisions becomes limited to Notary Public either.
Leo Pfeffer: No. It's not limited to at all. It is to any -- any office -- any public office on the State of Maryland.
Potter Stewart: And in administering oath, I suppose he -- it includes by the phrase, “So help you God.”
Leo Pfeffer: You can or you need not. This is --
Potter Stewart: It's up to the Notary Public?
Leo Pfeffer: The Notary Public need not. Certainly, I -- I would very much doubt, indeed, I -- almost certain to states have no oath, would be declared invalid. Because it includes or excludes the term “So help me God.” The -- the oath as prescribed by the Constitution of the United States does not include that phrase at all. Many oaths -- many statutes included some (Inaudible) I think that's a ceremonial act. It's neither its presence, nor its absence in anyway affects the validity or the effectiveness of the oath. Besides this, I don't think it's anything in Congress for a person himself does not believe in God to administer an oath to one who does believe in God. Certainly, people often swear on the Bible, the New Testament and the oath may be administered by a Jew, who does not believe in the New Testament, who believes only in the Old Testament. It is not the -- the person administering the oath which is the important thing as the person who is taking the oath. It is his belief. If belief is relevant at all and I think under modern laws of -- of perjury and of the competency of witnesses, it is -- it is not the -- the belief of -- any religious belief is not relevant at all. But if it is relevant at all, it is the belief of the taker of the oath, not of the person who administers.
Earl Warren: I wonder why -- could I ask, Mr. Pfeffer, before he sits down please. Could a witness be compelled to say -- to respond to that portion of a note which says, “So help me God”?
Leo Pfeffer: I would say no. I would --
Earl Warren: You -- I --
Leo Pfeffer: -- believe that that would be different, undoubtedly --
Earl Warren: Yes.
Leo Pfeffer: -- unconstitutional.
Earl Warren: Yes, well, that's -- I -- I misunderstood you. Now, how about the portion of this oath that says, “In the presence of God”?
Leo Pfeffer: I think he has the right to -- to refuse to say that too.
Earl Warren: So he has a right to refuse --
Leo Pfeffer: I think so, sir.
Earl Warren: -- refuse to say that. Now, is there any statute in Maryland that gives him the right to affirm instead of making this kind of a -- of a (Voice Overlap) --
Leo Pfeffer: Actually --
Earl Warren: -- oath?
Leo Pfeffer: -- actually the Constitution uses the words "declare".
Earl Warren: (Voice Overlap) --
Leo Pfeffer: And presumably he would have a right to declare his belief in God. But he must declare it whether he doesn't -- the purpose of a declaration, the -- the privilege of declaration was not for the benefit of the non-religious, but for the benefit of Quakers and the French whose religion prohibit them from swearing.
Earl Warren: Yes.
Leo Pfeffer: And they were permitted to make the same averment in the form of a declaration rather than the oath. But I don't believe -- but as before this Court, is whether the formal -- the formal way in which the averment is made, whether in the form of an oath or declaration, but before the Court is the power to compel that averment --
Earl Warren: Yes.
Leo Pfeffer: -- in that whatever form.
Earl Warren: Yes. Now may I ask you do we -- give me just one moment. May I ask just one more question? Does -- does an affirmation as used in the United States statutes refer only to a person who does believe in God or does -- does it apply to all people who do not wish to take an oath?
Leo Pfeffer: I've -- I've -- there's no limitation as far as I know. Any person can't and wishes to affirm without stating the reasons why -- what motivates his desire to affirm encompasses I think every person.
Earl Warren: That's never been interpreted as far as you know.
Leo Pfeffer: As far as I know, it's never been interpreted here.
Earl Warren: Yes. Thank you.
Felix Frankfurter: May I ask you, when the allowance of affirming instead of taking an oath came into -- of course, enacted or allowed the witnesses in the federal court?
Leo Pfeffer: I kind of like, could not say.
Felix Frankfurter: About -- do you know?
Leo Pfeffer: Oh, I think I would guess it's a certain --
Felix Frankfurter: (Inaudible)
Leo Pfeffer: I certainly would guess it's at least a half century old.
Felix Frankfurter: Did the affirmation statutes in various states of the modifications of the requirements of an oath? Is that a -- a movement contemporaneous more or less, throughout the States?
Leo Pfeffer: No. I think this goes back from the original -- from the original constitutional provision of -- that allows the President and other federal officers --
Felix Frankfurter: I'm talking about witnesses in Court.
Leo Pfeffer: Whether that was, I couldn't say. I think that in the western states -- certainly the western states from the very beginning, allowed -- allowed affirmation and declaration instead of oaths. And as the -- the incompetence --
Felix Frankfurter: The Western States meaning post Civil War --
Leo Pfeffer: Post Civil War state.
Felix Frankfurter: Yes.
Leo Pfeffer: And as the incompetence of atheists or nonbelievers to testify gradually disappeared until it's practically now, generally conceived the obsolete although the State of Maryland assumes it isn't, has that developed with and inevitably came the necessary privilege of the affirming and declaring as in lieu of swearing.
Felix Frankfurter: How many states have comparable legislation of it?
Leo Pfeffer: To this one? I think some seven or eight states. They're listed in -- in the robbery for the Attorney General's place at Maryland. Seven or eight states have similar provisions. I don't frankly, whether they were actually enforced. Probably most -- most people simply signed the oath whether or not, they believed in the existence of God. And therefore, it hasn't been tested in courts until now.
Earl Warren: May I ask you one more question? Can a -- can a witness or -- or a person who is under obligation to take an oath always make a declaration in -- in Maryland instead of taking the oath?
Leo Pfeffer: Well, at Maryland, the -- oh make a declaration?
Earl Warren: Yes.
Leo Pfeffer: I couldn't say -- I couldn't say, I would guess he could because every state as far as I know, protects the Friend of the Quakers whose -- who believe in God, but interpret the command, “Thou shalt make -- take the name of the Lord in vain,” as prohibiting, forbidding oath. And therefore, I'm sure that there is no state which would I think will be a denial to process frankly if a state said to a Quaker, “Since you can not take an oath, you are incompetent as a witness.” I think it will deny due process, one who's -- is an atheist where barred from testifying, but certainly one who was a Quaker or a Friend who cannot take an oath because of that, could not be barred as a witness.
Earl Warren: Do you have in mind the declaration as required in Maryland? Does it make any reference to -- to God or the declaration?
Leo Pfeffer: The declaration which is in challenged here or the declaration of the witness?
Earl Warren: No. No, you -- as I understood you, a person could make a declaration in -- instead of bringing his oath.
Leo Pfeffer: I know. Yes
Earl Warren: Now, what is a declaration called for? It does --
Leo Pfeffer: In -- in the present case?
Earl Warren: Yes.
Leo Pfeffer: A declaration of belief in God.
Earl Warren: Well, it --
Leo Pfeffer: That the belief in the existence of God.
Earl Warren: Well this -- this isn't a declaration. This is an oath.
Leo Pfeffer: No.
Earl Warren: I thought you said there was an alternative --
Leo Pfeffer: Yes.
Earl Warren: -- that in -- in Maryland that they called an affirmation.
Leo Pfeffer: Yes. Well, it's a declaration. You could say, “I swear I believe in God or I declare I believe in God.” In both case, you must say, “I believe in God.”
Earl Warren: Oh -- oh, I -- I see -- I see.
Leo Pfeffer: That you can say, “I swear it.”
Earl Warren: Yes.
Leo Pfeffer: Or “I believe,” or “I declare it.”
Earl Warren: Yes.
Leo Pfeffer: Either is permissible.
Earl Warren: Yes.
Leo Pfeffer: But in both cases therewith -- records of belief in God is the present.
Earl Warren: I see. Thank you very much. Mr. Speiser.
Lawrence Speiser: Mr. Chief Justice. For the question as to whether atheists are permitted to affirm, there has been one decision that I know of in which the issue was specifically raised and that was a Ninth Circuit Court of Appeals' decision, petitioned (Inaudible) which summarily reversed without opinion, a denial of naturalization of an atheist, which originally arose in the District Court of Hawaii, as cited on our brief. The Government confessed error on it, on the grounds that the word, “oath” included affirmation and there was no other inquiry to go beyond that. And there was in the record that the man was an atheist and he was subsequently naturalized by making affirmation. I'm going to discuss the questioning of the reasonableness of the classification that's been made by this position of the Maryland Constitution. In order to do so, we must look at the -- the groups that are affected by it, the group that's carved out in the purpose of it. As has been stated, the declaration of belief in God covers all office holders. It is not restricted to Notaries. It's not restricted to those who give oaths. It covers the Governor, Secretary of State, judges, council men, clerks of court, register of wills, all state officers acted in general, all of them were covered by this. The Court of Appeals below raised the question as to whether Notaries were in a different position, because they give an oath. And the answer to that is, no. And Mr. Pfeffer pointed out others beside Notaries do give oaths and take statements under oath. But a Notary or any of the others that do this are barely performing a ministerial duty. It's not their function to look into the religious beliefs of individuals. They aren't supposed to be religious teachers. As a matter of fact, there is a provision Article 39, which provides that various -- that individuals can make affirmations, that's the most effectual confirmation by the attestation of a divine being. Now, you would think that if that's the case that they would perhaps have a qualification on the part of notaries or others to have some knowledge of religious practices of what the various sects hold, what's the best way in which a -- an attestation may be made, but they have no requirement like that. And I think that a requirement such as that would be unreasonable, but they -- they haven't done that. Now, 42 other states and the Federal Government and England, even with an established church, permit oaths to be given by judges and the other individuals without determining if they believe in a Supreme Being or in moral accountability. The Clerk of this Court just when this session started, swore in attorneys to be members of the Bar of this Court and the members of this Court do not know whether that Clerk believes in a Supreme Being or moral accountability, that members of this Court don't know what the other members of the Court believe in this respect, even though you've all taken an oath when you assumed your role as Justices of this Court, because the Constitution forbids a religious test for public office. Now, the -- the question has been raised, “Well shouldn't you believe in the -- in the sanctity of the oath at least, which is equated by the Court of Appeals below?” But that isn't what the -- the oath says -- that the declaration says. It says that you must have a belief in the Supreme Being. The court below equated it to include a belief in a -- in the sanctity of oath and -- and some other things perhaps. Now, from this entire group of officers of -- of the State, you're carving out several -- several types of individuals. You carve out first of all, nonbelievers in the existence of God. You carve out nonbelievers in moral accountability under dispensation of God. They took from the section covering witness and jurors, an -- an additional qualification which seems to exist and said that this is equated to a belief in God. Now, this is one of the dangers that can be shown when we get into this question as to trying to determine what God is being sworn to by the various meanings of what is God and the fact that the court below appended a qualification in addition to the fact that the -- the oath, the Maryland Declaration of Rights says, “No religious test shall be required other than a belief in God.” They tacked on a belief in sanctity of oaths. Agnostics are barred as well, because agnostics can't say they believe in God. Agnostics have some doubts. They don't know. As Mr. Pfeffer pointed out members of non-theistic religions are barred. And then finally, there is the group, those who just object to test those. Who may in fact, believe in God, who may in fact, believe in moral accountability, who may in fact, believe in a -- a system of rewards and punishments, but who'll take the position, it's none of the business of a state to ask me to find out. Now, they are covered here, because this is a declaration of belief in God, which is required under Article 37. All these are based on beliefs, not based on passed acts, on associations. They're based on none of those factors, only beliefs. Now, in order to determine whether this classification is reasonable, we have to look at -- at history. We have to look at -- at the purpose of this. And implicit in this is the question, “Is it reasonable to disbelieve or mistrust all of these that I've mentioned?”
Hugo L. Black: May I ask, What is the basis of that argument you're making now?
Lawrence Speiser: Our basis of the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause as to whether there's any substantive relationship between the disqualification and a holding of office under a state. The States are -- are barred under the Fourteenth Amendment from depriving individuals of equal protection of the law. And I'm raising the question of a classification that's made here irrespective of the -- of the First Amendment arguments that have been made already. Now, the broad sweep of history is very much against the fact that we cannot trust in public office, nonbelievers or we cannot believe nonbelievers in office, who take an oath that they will support and defend the Constitution or to perform the functions of their task. Article VI, I think, is a good argument in favor of this point of view. We have the President of the United States, who maybe a nonbeliever, because our Constitution forbids us to find out whether he's a nonbeliever. Yet, he takes an oath of office. We have to rely on his good faith in taking that oath -- oath of office without finding out whether he believes in the Supreme Being or not. All of federal officers, all of the judges, again, we rely on this without knowing whether or not, they believe in a Supreme Being. This is an Article VI and it was thought of in that context. We've eliminated in most states, many of them did not have it, disqualification based on belief. England, which even now has an established church, doesn't require such a statement as this of a belief in God. Then, the question comes well --
Earl Warren: What do they permit in England as the equivalent of the oath?
Lawrence Speiser: There's nothing that I know of that's the equivalent of requiring a belief on the Supreme Being. They do promise to -- to perform their task, but they -- they have nothing beyond that that I know of, Your Honor.
Earl Warren: And just to say that they will tell the truth or they will do so and so.
Lawrence Speiser: Or they will perform their office, that's correct.
Earl Warren: Yes, without any reference to the deity at all.
Lawrence Speiser: That's right. And they have a right to affirm there and by a statute of England of the 1868 as I recall, they eliminate any disqualification to -- for atheist and being able to take public office in England.
Hugo L. Black: If you -- if you get away from the protection you claimed under the First Amendment, how can you say it might not be reasonable if that's your basis for a state to say that a Notary Public whose business is to administer the oath which contained statements, “So help me God,” that an atheist would not be the right man to do that, if -- if you're depending wholly on equal protection.
Lawrence Speiser: Well, obviously we're not depending wholly on it but I --
Hugo L. Black: I understand that --
Lawrence Speiser: -- but I'm -- but I'm --
Hugo L. Black: (Voice Overlap) but now, I --
Lawrence Speiser: -- I'm suggesting --
Hugo L. Black: -- is based on.
Lawrence Speiser: -- I'm suggesting that now that an argument can be made divorced of the First Amendment incorporation in the Fourteen Amendment based on the reasonableness of the classification. Let me suggest an additional reason.
Hugo L. Black: Is it -- do I understand that the only -- only duty on this man is to administer oaths?
Lawrence Speiser: He has some other duties, but -- but the duties are ministerial. There's --
Hugo L. Black: And does the oath contained in the statement, “So help me God?”
Lawrence Speiser: The -- I --
Hugo L. Black: That he has --
Lawrence Speiser: Which -- which oath are you referring to, Mr. Justice Black?
Hugo L. Black: They oath that he would have to administer in Maryland.
Lawrence Speiser: They permit affirmation in Maryland.
Hugo L. Black: But do they also have the other?
Lawrence Speiser: They -- and they have oaths in Maryland and the usual oath by practice if for no other reason, has the words, “So help me God” included on it. But in -- in our brief, we point out the fact that, “So help me God” is -- is not a substantive qualification for taking an oath, but is -- a -- a procedural device. It's not included for example, in the oath of office of the President of the United States. The Constitution clearly sets out that he shall take this oath and the oath is spelled out. It says, “Swear or affirm.” It doesn't have the words, “So help me God” attached to that oath. Yet, President Kennedy is probably all of the other presidents, all of whom have -- have sworn rather than affirmed, have put in the words, “So help me God.” Does that make them -- does that disqualify them from being the president because they failed to take the oath that set out in the Constitution? I think the answer is, no. That “So help me God,” is just the procedural device by which an oath is taken, but it is not a qualification of a belief in God merely because they added on.
Charles E. Whittaker: But in Maryland, Mr. Speiser, is there as statutory oath that must be taken? I -- I'm not talking about this declaration, but a statutory form of oath?
Lawrence Speiser: Yes. Yes, there is, Your Honor.
Charles E. Whittaker: But does it contain the word or phrase, “So help me God?”
Lawrence Speiser: I -- see, I believe it's set out in the -- in the record, Your Honor.
Earl Warren: It says, “In the presence of God.”
Lawrence Speiser: Yes. It starts out “In the presence of Almighty God” and then it does not set out, “So help me God” at the end of it.
Charles E. Whittaker: It is not.
Lawrence Speiser: It is not.
Hugo L. Black: Well, might that not if you're getting down to nothing with equal protection, might not that operation affirms, or state to say, “We do not want a man to be an official when his duty has imposed an oath that said, in the presence of the God, or have presence of God, when he doesn't live them?
Lawrence Speiser: Well, it's not up to him to determine whether the individuals before him do or don't believe in God. Otherwise, their -- you'd perhaps it has some additional qualification. But even if you get beyond that question and -- and again respective to it, an equal protection argument, divorced of the First Amendment question on a rational basis, how do you know that a person doesn't believe in God? Because he says so, because he said so, so you believe him when he says, he doesn't believe in God, but then according to this, you refuse to believe him when he says he's going to perform his office in a true and diligent fashion or when he says he's going to support the Constitution? You believe him with respect to disqualifying him, but you don't believe him because he's going to -- because he's -- has to promise that he's going to perform the office as he should. There's a good argument that also as to why you should believe a nonbeliever even more than a believer. If -- if this provision is a good one, because the nonbeliever is suffering disadvantages. He suffers public program. He's barred from public office and in this context the words, “I believe in God,” are -- are something that -- that he's offering almost as a -- accepting as a bribe from the State. If he says these words, he gets the public office, if he doesn't, he doesn't get the public office. So what good are the words whether it's to his advantage to say them? Chief Justice Ellsworth in England once in -- in this country, once referred to England where they had a test oath at the time he pointed to it and -- and in contrast to Connecticut, where they didn't have one. Because in England every person that holds a public office must either be a saint by law or a hypocrite by practice. I think that at one time, Mr. Justice Black, you yourself said that words under -- uttered under compulsion or proof of nothing but loyalty to self- interest. And I think the same thing would apply here that where a person says words under compulsion, “I believe in God,” or whatever else he says under a form of compulsion such as this, it proves nothing other than his own self-interest is -- is at stake. This is not a reasonable classification, it seems to me. Now, what if the State finds that someone falsely took the oath and then we get into another problem? That if he took the oath and didn't really believe in God then we have a heresy file set up. In which perhaps according to the law of Maryland, he's even incompetent to testify in his own behalf, because witnesses are barred not only by, unless they believe in God, but there are additional disqualifications in believing in a system of rewards and punishment and the moral sanctity of an oath. Now it's our contention that -- that such a provision is this with the First Amendment and without the First Amendment, has no reasonable basis for qualifying a person for public office. I go on to the Article VI argument -- yes --
William J. Brennan, Jr.: (Inaudible)
Lawrence Speiser: That's correct, Your Honor. The -- there's article that -- all right. That there -- there's Article 39, as I recall, which -- which provides that -- Article 36 which says this, “Nor shall any person otherwise competent be deemed incompetent as a witness or juror on account of his religious beliefs 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 therefore, either in this world or in the world that come.” Those are all qualifications to be a witness or juror in Maryland.
William J. Brennan, Jr.: (Inaudible)
Lawrence Speiser: Well, I think that if he were barred, it would be a denial of due process, but there's no exclusion here. It says witness or juror. There's no exclusion. Now, on the Article VI question, Mr. Chief Justice, which you raised as to whether it's properly before the Court, we refer to it in our reply brief. Article VI was mentioned specifically in the complaint for mandamus. It was covered in the amicus brief of the American Civil Liberties Union, filed in the Court of Appeals and was covered there rather than in the chief -- in the brief in chief because, the chief judge of the Court of Appeals asked that there be no duplication when he granted permission to file amicus briefs. So it was covered in the Court of Appeals below and it has been raised both in the trial court and the Court of Appeals and in this Court as well. Now, we will concede that Article VI in and of itself, does not apply directly to the States without implementation through the Fourteenth Amendment under liberty clause, “That no person shall be deprived of his liberty without due process of law.” The argument is setout in our briefs. We feel that considering the discussion in the -- on the Constitutional Convention that they considered religious test so fundamental. As a matter of fact, they had even a broader provision, first suggested for inclusion of the Constitution. They finally faded away back to this, but this was so -- so fundamental, they included that on the Constitution. It's the only thing in our Constitution covering freedom of religion, then you added the First Amendment. So it can be considered to apply against the States now. I -- I can see that with the Fourteenth Amendment, you can have a different rules covering religious tests for public office in the Federal Government as against the State. It can apply either because it's considered a fundamental part of the First Amendment freedom of religion, the establishment of religion, or it can be considered merely by an Article VI being incorporated in the liberty clause, that -- that no person be deprived of his liberty without due process of law, under the Fourteenth Amendment directly.
Earl Warren: Attorney General Finan.
Thomas B. Finan: Mr. Justice -- Chief Justice, members of the Court. It is the contention of the State of Maryland that Article 37 of the Declaration of Rights of Maryland, which requires of anyone who might abstain to or aspire the whole public office, office of profit or trust in the State of Maryland, must take an oath or rather make a declaration that he believes in the existence of God, that this does not violate the First Amendment of the Constitution in any respect either with regard to the establishment of a religion or the prohibition of the free practice thereof. That is the first division of our argument. Secondly, we contend that the appellant in this case, Mr. Torcaso, has not been denied due process of law or equal protection of the law as afforded by the Fourteenth Amendment of the United States Constitution. And thirdly, our contention is that Article 37 of the Declaration of Rights of the Maryland Constitution does not violate a Sixth Amendment of the Federal Constitution. Now I would like, may -- may I please, Mr. Chief Justice to address myself to our first two divisions of this argument. A declaration of -- a belief in the existence of God as set forth in our Constitution in Maryland is something which we feel is more or less an important parcel to what has been recognized as the universal philosophy of this nation that we are a religious people. I know that in the appellant's brief, they seem so much to treat in cavalier fashion or in their reply brief, the analogies which we have made in our brief to the parts of the Declaration of Independence, wherein it is stated and it is acknowledged that there is a creator. We'll refer to this very basic document of ours because certainly there, we have the voice of not one individual, but of the people speaking. Now, we know that it appears no less than three times where we recognized a creator as a people. And the use of the term “supreme judge,” bringing down acknowledgement of a Supreme Being. And the final clause of supplication for the support of this declaration with the firm reliance on the protection of divine providence initially pledged to each other our lives, our fortunes and our sacred honors. The supplication or the protection of divine providence is expressly set forth in the Declaration of Independence, wherein we recognize the existence of a Supreme Being. Now, in the appellant's brief they indicate that so far, so good, that it is mentioned the implication -- on an implication, but the expressed avowal of the existence of a creator of a Supreme Being is mentioned in the Declaration of Independence. But they say there's no mention of it in the United States Constitution. And certainly there is ample reason to take that implicitly. There is the recognition of a Supreme Being even in the Constitution. I would like to respectively call the Court's attention to a very excellent dissertation on this and the Virginia Law Review, which has been published since the filing of our brief with this Court, which is a March issue, Volume 47 and the whole line of cases treating on this subject and specifically with regard of the Torcaso case, is fully outlined in that article. But at one point it states this, “A guarantee to the Constitution itself, presupposes a higher or natural law. Indeed the Constitution has the classic historical case of the great social contract. And 17th and 18th Century contract theorist would be hard for us to demonstrate a binding nature of civil laws promulgated under a government created by the social contract, unless an obligation to observe that contract itself was imposed by a higher authority than man.”
Earl Warren: What is that -- what is that law review job?
Thomas B. Finan: University of Virginia Law Review.
Earl Warren: University of Virginia.
Thomas B. Finan: Mr. Chief Justice, Volume 47, March 1961.
Hugo L. Black: Do I understand from your argument that you think it would be all right, could a Federal Government to impose a test of this kind?
Thomas B. Finan: Mr. Justice Black, I -- let me state this. We are primarily concerned here with a question of a right which we feel has been reserved to a state. I wouldn't go that far, no sir.
Hugo L. Black: But you couldn't weigh, could you, in view of the next to the last sole article in the Constitution --
Thomas B. Finan: That's right.
Hugo L. Black: -- which says there is no religious test shall ever be required.
Thomas B. Finan: That's correct. No, sir -- Your Honor or Mr. Justice, we -- I wouldn't go that far. The State of the Federal Government could do that. I -- I would like to state this and I -- I think this question resolved itself into this premise, can a state constitutionally exclude an atheist from public office? It probably resolved itself into that. And the appellants in their brief have relied heavily on the question of whether or not the atheist is encompassed by the First Amendment to the Constitution. We feel that religion as defined and as not defined, but is mentioned in the First Amendment to the Constitution of the United States, that certainly as a group, it does not include the atheist. It -- it certainly, we -- we have a decision and the language of the United States Supreme Court in several cases wherein they have indicated that any definition or any idea of religion must relate itself to some type of a Supreme Being. In the case of Davis versus Beason, which was a case many years ago, decided with regard to plural marriages out in the territory of Idaho and the celestial marriages as they call them, under various forms of -- resumed at that time the Mormon religion and other types that of religious sects that believed in plurality of wives. And the decision in that case the Court says, “The term "religion", as referred to ones views of his relations to his creator and to the obligations they impose of reverence for his being and character of obedience to his will.” And again, Mr. Chief Justice Hughes -- Mr. Chief Justice Hughes, in the case of United States versus Macintosh, and I know that that has been later overruled by Schwimmer case but nonetheless, in that particular case, Mr. Chief Justice Hughes did mention his idea of religion. And he says, “Both the essence of religion is belief in the relation to God, involving duties superior to those arising from any human relation.” I would certainly seem to take care of what are -- the appellants have talked about regarding humanism and things of that nature. And we feel that -- that when this particular sanction is placed upon an atheist with regard to public office in Maryland, that we are not setting up some preference of religion or preference of theism over non-theism, whatever you might wish to call it.
Hugo L. Black: Have you indicated just when this statute originated? When was it's first time? When did it first come to (Voice Overlap) --
Thomas B. Finan: It was past in -- in this present form, Mr. Justice Black. It was in the Constitution of 1867.
Hugo L. Black: Was it in the law of Maryland before that, when it can't -- became a state?
Thomas B. Finan: In various forms, Mr. Justice --
Hugo L. Black: What --
Thomas B. Finan: -- it was.
Hugo L. Black: What people did it bar from holding office then?
Thomas B. Finan: In 1867?
Hugo L. Black: When it was -- became a state?
Thomas B. Finan: At the time of the -- when -- right after the Revolutionary War has -- the appellant has already -- Mr. Pfeffer has already indicated originally at -- has language pertaining to a person who only a member of the Christian religion and it was later, I think was 1854, that was amended to embrace not only Christians, but Jews as well. In 1867, which was the -- the present Constitution we have in Maryland came from that day.
Hugo L. Black: Am I wrong in thinking, I thought I'd read somewhere. When the -- Mr. Carroll was representing Maryland, he was disqualified from holding public office?
Thomas B. Finan: Mr. -- who?
Hugo L. Black: Mr. Carroll, the great Carroll who --
Thomas B. Finan: Oh, absolutely --
Hugo L. Black: Charles Carroll.
Thomas B. Finan: -- John -- John -- Charles Carroll, was not allowed to hold public office. The first 20 years of his what might be termed to his public life.
Hugo L. Black: Why?
Thomas B. Finan: Because they barred Catholics in Maryland at that time, contrary to the fact that everybody assumes that Maryland was one of the cradles of Catholicism in this country. It was, but then there was a period when they had certain sedation or acts barring religious freedom for the period almost a blackout of 40 years in Maryland, where Catholics as well as Jewish people cannot hold office. And there was a -- a result of Charles Carroll or Carrollton's writing numerous articles, which he signed as the first citizen of Maryland. Anonymously, people wondered who it was and they find out who it was. They finally passed an act which removes the bar to Catholics to public office. That was about -- that was of course, before the -- that was still under the -- as a proprietary colony it was -- before it was a state. I would --
Hugo L. Black: Did you take part in the debates about the religious qualifications provision?
Thomas B. Finan: No. The -- the main source for Maryland would be the first Attorney General, Luther Martin.
Hugo L. Black: Luther Martin.
Hugo L. Black: I'm talking about the federal constitutional provision.
Thomas B. Finan: I'm -- I'm referring to that too, Mr. Justice. Charles Carroll did not. Mr. Luther Martin, Thomas Mercer, Chase --
Felix Frankfurter: Chase.
Speaker: Pardon?
Felix Frankfurter: I was (Voice Overlap) --
Thomas B. Finan: Chase and several others, but Charles Carroll did not. He signed the Declaration of Independence. But -- and I might say Mr. Luther Martin was a very liberal man. He finally left to his own devices, I'm not certain that this would --
Hugo L. Black: I thought I've read somewhere where Mr. Carroll expressed his views very strongly in that connection.
Thomas B. Finan: Well, I --
Hugo L. Black: Maybe I'm wrong.
Thomas B. Finan: I might point this out to the Court that --
Hugo L. Black: Im not talking about in the convention list.
Thomas B. Finan: Pardon, sir?
Hugo L. Black: Im talking about in the convention list (Inaudible)
Thomas B. Finan: Well, I'm sure, he's expressed himself on -- because of his own situation, Mr. Justice, but specifically with regard to this question of a declaration in beliefs in the existence of God as a prerequisite to public office, I -- I have no knowledge of what he might have said with regard to that.
Earl Warren: Could a Buddhist -- could a Buddhist become a Notary Public in Maryland? A Buddhist? As I understand, Buddhists do not believe in a -- in a god. Yet they are many in this -- in this country --
Thomas B. Finan: That's right.
Earl Warren: -- particularly in Hawaii as counsel has mentioned and I know in other States, they have many Buddhist temples of which citizens are members.
Thomas B. Finan: Well, Mr. Chief Justice, if they did not believe in some sort of a supreme -- a deity or a Supreme Being, in all honestly, I would have to state that according to the interpretation of the laws, as we have it, they could not become a Notary.
Earl Warren: Yet it is recognized as one of the religions of the world, is it not?
Thomas B. Finan: Yes, it is.
Earl Warren: Then what -- what basis in the Constitution is therefore excluding those people, if they have a religious belief and want to practice it in the -- in this country?
Thomas B. Finan: If it please you, Mr. -- Mr. Chief Justice, let me state this that, as of the appellants have set forth in their brief, you cannot have any discussion of this question without some discussion of the area, of course, of the separation of church and the State.
Earl Warren: Yes.
Thomas B. Finan: However, when you review the old series of cases and -- and many lines on this, we -- we find out that there are certain places whether it pinpoints a contact, where there has been interchanges as it were. We feel that the -- the cases which this Court had decided have allowed the States to put reasonable conditions on certain facets of religious liberty, where the public welfare has required it. Now, we would like to just call attention to some of it.First of all, you have loyalty of the cases. You have a case many years ago in California, Hamilton versus State of California. Where two young men, who were members of the Epworth League and who were conscientious objectors and who did not wish to join the ROTC unit at the state university. Refused to take an oath, which would tell them to support and defend the Constitution of the United States and I presumed the Constitution of California and also become a part of the ROTC unit at the university. I think that case is quite analogous to this case because there was no compulsion for those two boys to go to the university. They went there as a matter of privilege. Just as in this case, there's no compulsion for Mr. Torcaso to become a Notary Public. He has suffered no penalty. He suffers no punishment. There's no abridgment of his own belief as an atheist to luxury in that belief as long as he wants. If he seeks public office, which is a privilege, then the State places that sanction on him. Now we feel that --
Hugo L. Black: You too have been barred from running for attorney general on the ground of your religion, would you consider that abridged your rights?
Thomas B. Finan: Mr. Justice, the courts have almost universally held that there is no property right in public office that there is -- the public office is merely a matter of privilege, it's not a matter of right.
Hugo L. Black: Would you accept that in your belief that you had been barred because of your religion?
Thomas B. Finan: I probably would not like it, Mr. Justice, but I would be compelled to accept it. We feel that the State can place these reasonable safeguards -- the -- a touchstone of the -- of the whole situation seems to be the substantial -- substantiality of the interest which to seek -- which the State seeks to protect, as balanced against the gravity of the invasion of the First Amendment. And we feel that in this Torcaso case that the State of Maryland was not unreasonable in trying to set up some safeguards to -- assure to itself a security of good conduct for public officials. Now, it is not as the appellant's state that a reason while we in Maryland setup a question of a declaration of a belief in the existence of God because of the fact of -- of merely with regard to the oath or an order we might administer or the fact that a person who administers oath should take an oath. Actually, as it has been discussed here previously, the State of Maryland provides for an affirmation for a Quaker or assembly of Friends. They can -- a person can affirm as a witness, they can affirm to qualify for any office in Maryland. We do not allow atheist to testify in court however, but the -- the theory behind, they either by affirmation or by an oath, or by a declaration of acknowledging the existence of God, is for the purpose of equating that declaration of a belief in the existence of God with moral accountability for one's actions. And that goes clear back to the earliest inceptions of our Government, in this country and in Maryland, where we find that tradition just to this Court opens with the salutation, God save the United States, in this Court. The -- the acknowledgment by public officials, “So help me God,” that we are evaluating the oath in the terms of moral accountability for our actions. And we feel it is a reasonable safeguard for a state to require public officials to make such a declaration. It doesn't matter of course, whether they'd be Methodists, Catholics, Jews, whatever they might be. It's the acknowledgement of some Supreme Being who will judge their actions and hold them accountable for them. I might add that Maryland is one of the few states but still requires a religious ceremony at a marriage. It doesn't make any difference what particular type of religious ceremony, but we do not recognize Justice of the Peace marriages in Maryland. We still hold to the fact that a man can be arrested and tried for blasphemy in Maryland. And we feel that in our belief and traditions as a state, that we are not unreasonable in requiring this safeguard from our public officials.
Earl Warren: Do you -- do you think that this oath required a belief in Christian religion that it would be sustainable?
Thomas B. Finan: It -- I -- I feel that that would be certainly too restricted. I think the -- the idea of -- of the atheist that we're faced with here is certainly different from debating a -- a boring large segments of -- of recognized religions, such as those who might believe in Zionism or Judaism and so forth.
Earl Warren: Well, I -- I'm not so concerned the moment about the atheist as I am, say some other importance of religion like --
Thomas B. Finan: About the Buddhist.
Earl Warren: -- like the Buddhist. And some of rest of them and I -- I thought that we got away from -- if you conceded that it couldn't be -- it was too restrictive, if it was a Christian religion, I'm wondering how you could differentiate between the others.
Thomas B. Finan: Well, Mr. Chief Justice, I hearken back to the cases that I have mentioned like the Hamilton case. I hearken back to the loyalty oath case, the -- the (Inaudible) case which came from Maryland under the Ober Act, where we required people to take an oath that they did not belong to any organization that believed in the overthrow of the Government by force and violence and so forth. I -- I feel that in any of these situations, it's a question of some perhaps abridgment of either freedom of speech or some abridgment or freedom of religion, but the question is as -- as this Court, I feel, has recognized, like in the Zorach case whether or not, the common will, the welfare of the people justify it. We have -- certainly there's been, as I state, some interchange between a church and the State in cases where you have a program of exempting church property from taxation where you have a question of a federal money for lunches in schools. There are numerous situations. I think as Mr. Justice Douglas pointed out, it isn't the question that there has to be a hostility or an -- an inimicality between a church and the State, but it's a question where they should try to accommodate the two separate institutions.
Hugo L. Black: How can the States show hostility to atheist without attempting to interfere with their belief?
Thomas B. Finan: Well, Mr. Justice Black, it's a question whether this would be hostility. They are not persecuting him in any way. He --
Hugo L. Black: I -- I thought you used the word “hostility” to religions.
Thomas B. Finan: I say that in the Zorach case, that Mr. Justice Douglas said that the -- this separation does not require us to go so far as to be hostile or show hostility between the church and the State, that there should be some type of an accommodation.
Hugo L. Black: I understood you to say that on balance here, you insisted that the interest of the State in having Notary Publics, you might do no wrong, outweighed the interest of the -- this man and the public and leaving him complete freedom to believe or not to believe that he saw fit. Is that about the way you had weighed in the scale?
Thomas B. Finan: That's -- that's correct, Mr. Justice. I just like to state in -- in closing, I -- I would presume probably the next situation would be maybe as to how some atheist might desire to obtain a mandamus of some type on the Clerk of the Court to get a license to have a religious -- or to be married without a religious ceremony. I don't know how an atheist would get married in Maryland under the present law. We feel that there --
Hugo L. Black: Has that been tested yet?
Thomas B. Finan: Not yet, Mr. Justice [Laughter]. I'm --I'm proposing that that probably is in the outset. And I -- I feel that we have a right to -- to have these certain safeguards. The -- we're not an irreligious people. I won't burden the Court with many quotes from the various cases which were in our brief, but with this Court, I'm sure, well aware of -- that we feel that all the State of Maryland has done is to set up the safeguards and as the Court of Appeals in its language said, Justice Henderson, “That this requirement to declare a belief in the existence of God on a part of a Notary Public or such a security of good conduct on the part of public officials that this requirement was not so unreasonable as to be invidious for the Fourteenth Amendment of the Constitution.”
Earl Warren: Well, may I -- may I ask, is it clear in this case that -- that this man is an atheist as distinguished from a non-believer or such as an agnostic or -- or let us say, some other religion, is it fair in the record that -- that he is an atheist?
Thomas B. Finan: I believe in the petition, Mr. Justice, that if he filed for the mandamus, he sets forth in there that he is an atheist.
Earl Warren: Well, that's -- that's enough if --
Thomas B. Finan: Or maybe not. I -- certainly as counsel has -- has so characterized him and the --
Charles E. Whittaker: Well, that's who I'd like to see it. I'll look for it and (Inaudible)
Earl Warren: Has your court then put any gloss on this as to -- to whether it would apply only to -- to atheist as distinguished from agnostics or -- or rather religious beliefs that did not necessarily recognize a Supreme Being?
Thomas B. Finan: No, Mr. Justice.
Earl Warren: They treat them all the same so far as the -- the interpretation of the courts is concerned -- the courts are concerned.
Thomas B. Finan: As long as they won't take the -- an oath in the declaration of the belief in the existence --
Earl Warren: Yes.
Thomas B. Finan: -- of God.
Earl Warren: So you think this case here is not just as though he's an atheist, but as you -- as if he was anyone who wouldn't -- not for any reason to take the oath.
Thomas B. Finan: Our Court of Appeals used this language and said that they did not feel that the First Amendment of the United States Constitution was ever intended to embrace and encompass the ungodly.
Earl Warren: The what?
Thomas B. Finan: The ungodly.
Earl Warren: Oh, the ungodly.
Thomas B. Finan: Yes.
Hugo L. Black: To do what term?
Thomas B. Finan: He has -- just for the Maryland Court of Appeals, Judge Henderson and his language in the opinion on that case said that in his -- it's his interpretation that the First Amendment to the United States Constitution was never intended to encompass the ungodly. Thank you.
Earl Warren: Mr. Kaufman.
Joseph S. Kaufman: Mr. Chief Justice, may it please the Court. I think Your Honors last question as to the form of the proceedings is very important. This case arose on a petition for mandamus to require the Clerk of the Circuit Court from Montgomery County to issue to the appellant here, his commission as a Notary Public. The Clerk gave to the petitioner and appellant here, the necessary oath which she was to subscribe prior to the issuance of the commission. The appellant refused and therefore the Clerk refused to issue the commission. A writ of mandamus was then issued, petition for writ of mandamus was then issued and the State of Maryland through the Clerk, filed a demurrer. The demurrer was sustained in the lower court and a final order was passed, dismissing the petition for writ of mandamus coming up on the demurrer. No testimony was taken whatsoever and the record as you -- Honors can tell us a very short record. However, I think the question as to what the religious belief or lack of religious belief of the appellant is -- was assumed through all the courts hated by oral argument or otherwise that he was an atheist. Now --
Speaker: (Inaudible) an allegation?
Joseph S. Kaufman: There's no such allegation in the pleadings.
Speaker: (Inaudible)
Joseph S. Kaufman: But there could be no finding because we accepted the --
Speaker: (Inaudible)
Joseph S. Kaufman: -- we accepted the allegations of the petition in it by a reason of our demurrer. Mr. Chief Justice and members of the Court, I feel obliged to advise the Court that we do have a practical situation here that I think counsel had entirely overlooked until this time and that the commission, for which Torcaso seeks, will of its own terms, expire the 1st day of May, 1961. The commission of a Notary Public is for two years commencing on the first Monday of May, in each and every year, by the Maryland Constitution. I point that out because I think it was overlooked and we think that the Court should be advised of that fact.
Felix Frankfurter: You mean nobody pleads this? You -- the State has not --
Joseph S. Kaufman: Your Honor, we -- in preparing for our argument, this question came up and it was not briefed at prior to that.
Charles E. Whittaker: Does it (Inaudible) from the time issued or from the time applied for?
Joseph S. Kaufman: No, sir. The commission is issued and the term expires on the 1st Monday of May, every two years. In other words, you can't get a -- if you applied to be a Notary Public in between terms, your term -- but all -- all terms expire at the end of the 1st day of May -- 1st Monday of May in the alternate year.
Charles E. Whittaker: Is this another issue?
Joseph S. Kaufman: No, sir. This one has never issued.
Felix Frankfurter: Are renewals automatic?
Joseph S. Kaufman: No, sir. They must be applied for --
Felix Frankfurter: I know -- I know they must be applied for.
Joseph S. Kaufman: -- certified --
Felix Frankfurter: Is it formality? The man has been a Notary for six years?
Joseph S. Kaufman: If he does not reapply, he does not get his commission again.
Felix Frankfurter: If he can't reapply again (Inaudible)
Joseph S. Kaufman: Mr. Justice Frankfurter, I must be frank to say that the normal procedure is, is that the State Senator will send an application, blank to each Notary Public in the past and those who request them in the future, to fill out, return to him for certification, for forwarding to the Governor. Now, I don't --
Felix Frankfurter: Is that an argument in political account?
Joseph S. Kaufman: Sir?
Felix Frankfurter: Is that an argument of political account?
Joseph S. Kaufman: Well, I think that's good politics for any State Senator.
Earl Warren: Is there any limitation on the number of notaryships that can be --
Joseph S. Kaufman: Only political considerations with limit that, sir.
Earl Warren: Well, what political consideration?
Joseph S. Kaufman: That's of the State Senator's feeling as to how many should be in his county
Earl Warren: It must come through the --
Joseph S. Kaufman: It must be certified by the State Senator. Yes, sir.
Felix Frankfurter: Is there anything in this Court that -- any (Inaudible) one way or the other that -- or renewal or renewed application will follow?
Joseph S. Kaufman: Your Honor, I asked counsel prior to the hearing and we just don't know here today. I -- I cannot answer that question.
Charles E. Whittaker: May I ask --
Earl Warren: What was the question you asked?
Felix Frankfurter: What if there's any indication in the records that renewal of the application would (Inaudible)
Earl Warren: Yes, yes.
Charles E. Whittaker: (Inaudible) automatic?
Joseph S. Kaufman: Not automatically, sir. I tried to explain that. The State Senator as a practical matter would forward to all those who had been -- held commissions as Notary Publics, a new application for ensuing two years. That application must be filled out by the person who held the commission as a Notary Public, returned to the State Senator for certification and then forward it to the Governor, who would issue a notice of his appointment. The applicant would then go to the Clerk of the Circuit Court of the county in which he resides, where he would pick up his commission after taking the oath that would be required here.
Charles E. Whittaker: Just as between that renewal and the opinion of the initial (Inaudible)
Joseph S. Kaufman: There is none, sir. The only difference is that initially you ask your State Senator to give you an application and on the renewal, usually be for political reasons, the State Senator will mail it to you as a matter of course.
Charles E. Whittaker: How should they (Inaudible) you say this issue becomes moot?
Joseph S. Kaufman: It becomes moot on the 1st Monday of May, sir.
Potter Stewart: Like what?
Joseph S. Kaufman: Which would be next Monday.
Felix Frankfurter: Mr. Kaufman, the State Senator may refuse for any reason or no reason or with this reason to countersign this, is that right?
Joseph S. Kaufman: He has -- he has no -- he can -- he can refuse because he doesn't like the politics of the man.
Felix Frankfurter: Or because he doesn't like the religion?
Joseph S. Kaufman: Well, if Your Honor, I -- I wouldn't like to go into that, but this --
Felix Frankfurter: But --
Joseph S. Kaufman: -- is a political question.
Felix Frankfurter: -- but can you go -- my question is can you -- suppose he said, I -- I will forward your application, can you -- can you bring a mandamus to make him forwarded by alleging that he -- that he's having something.
Joseph S. Kaufman: I don't think so.
Felix Frankfurter: And therefore --
Joseph S. Kaufman: I don't think so. I think that's the State Senator's discretion.
Felix Frankfurter: You couldn't pledge his conscience that way, could you?
Joseph S. Kaufman: I think it's a matter of discretion on his part.
Hugo L. Black: The part of your appointed process then, to be considered as a part of your appointed process for Notary Publics or the Senate on his own, to send the application to the man. Otherwise, how is he appointed?
Joseph S. Kaufman: Well, in the first instance, usually the person calls the State Senators.
Hugo L. Black: Applies.
Joseph S. Kaufman: Applies to the State Senator for an application.
Hugo L. Black: And the second that -- and the second --
Joseph S. Kaufman: And in the second instance, it is usually as a matter of due course that is sent to him automatically, just prior to the end of the term.
Hugo L. Black: I assume, if the Senator had found out in the meantime that he'd gone over to the other party or maybe has been refused because of --
Joseph S. Kaufman: Well, I -- I --
Hugo L. Black: -- didn't make it that he wouldn't like to send it, would he?
Joseph S. Kaufman: There might be many reasons why he wouldn't send it, but I can't answer. There are political considerations involved.
William O. Douglas: Couldn't he -- couldn't he apply even though the Senator doesn't recommend him?
Joseph S. Kaufman: Oh, he could --
William O. Douglas: Could he get a -- couldn't he follow the application?
Joseph S. Kaufman: No, sir. It must be certified to by the State Senator.
Potter Stewart: That's a matter of statute or is just a custom that's build up?
Joseph S. Kaufman: That's a matter of statute, sir.
Potter Stewart: The State Senator has veto power (Inaudible)
Joseph S. Kaufman: Onto become a Notary Public --
Potter Stewart: Or they (Voice Overlap) --
Joseph S. Kaufman: -- in Maryland, you must have a certification of the State Senator.
Potter Stewart: Of your county?
Joseph S. Kaufman: Of the county which you reside.
Felix Frankfurter: That has in it seats of -- potential seats of arbitrariness even more numerous than -- I'm not suggesting it's before us. I'm just reflecting [Laughter].
Joseph S. Kaufman: Well, if Your Honor please, I think it goes again to the question of the nature of this office. It is a political office in Maryland, a Notary Public and for that reason it is considered a public office within the meaning of that term.
Felix Frankfurter: But there are many things that could be done through silence which -- for which you can't give a bad reason, isn't that true? (Inaudible)
Joseph S. Kaufman: Well, I -- I would agree with that. I think the State Senator, one of his political adversaries somebody who did not support him for election would apply that that would be one means of countering that type of opposition. Now, getting --
Earl Warren: What if -- if we should even decide this case next Monday under Maryland law if you state to us that there would be no appointment to fill?
Joseph S. Kaufman: Well, if Your Honors please, it depends the way the Court decided the case, but the terms --
Earl Warren: But we've decided it in favor of the -- of the appellant?
Joseph S. Kaufman: The term for which Mr. Torcaso has applied to received his commission if he where issued this commission by the Clerk in the first instance --
Felix Frankfurter: Today.
Joseph S. Kaufman: -- if it was issued today, he could not serve beyond next Monday.
Earl Warren: Well, suppose -- suppose it was issued after Monday, under Maryland law.
Joseph S. Kaufman: Well, his -- his term has expired. There's no office to fill at that time.
Earl Warren: Well that's what I was asking. It seems strange you wouldn't present that to the Court before this (Inaudible)
Joseph S. Kaufman: Well, if Your Honor please, I think where everybody was directing their attention to the main issues and even if it is overlooked. We've had all new counsel in this case also since the trial on the lower court and then the Court of Appeals, because we've had a change in stewardship in the Attorney General's Office, Attorney General Sybert, having been elevated to the Court of Appeals while this case was pending and we have a complete new stewardship here. Now --
William O. Douglas: But the -- this decision below if -- if it stands would -- would be a continuing barrier to be given for any Senator to name him. I mean that it would -- it would be disqualified for many possible listed candidates.
Joseph S. Kaufman: Well, the -- Mr. Justice, I'd like to answer it this if I may. If -- and if -- if this decisions stands as we can contend it should, then in the future again, the Clerk of Court would be proper in denying to give the commission to the individual concerned. The question of religion does not come into this question until he goes to pick up his commission at which time he is required to take the oath incumbent upon him. Up to that time, there is no question other than the State Senator's certification and I think it is -- I'm fair to say that the Governor does nothing but a ministerial duty thereafter -- in accepting the recommendation of the State Senator.
Hugo L. Black: You don't think the State Senator, after your State was held that he cannot hold this particular job because he's an atheist, he's recommending again.
Joseph S. Kaufman: That's our question for the State Senator's (Inaudible) sir.
Hugo L. Black: Well, is it -- is it -- isn't a question of whether you've done -- obey Maryland law.
Joseph S. Kaufman: Well, if Your Honor please, he can recommend them again, but again, he couldn't qualify. The question is if he and his --
Hugo L. Black: Well, can we assume or presume that your State Senator charged with this important responsibility of making Notary Public [Laughter] would fail to obey the law of Maryland and refuse to recommend the man have said, he is an atheist?
Joseph S. Kaufman: Your Honor, I -- I would be presumptuous to try to presume what he would do.[Laughter]
Felix Frankfurter: May I suggest -- may I suggest that one can think of this (Inaudible) that you have in furthermore, free-spirited people beginning with Luther Martin. But the lawyer might say or the Senator might say, well, Chief Justice's rule may like concur in the result, he must have had some doubts. The Supreme Court took the case and heard the argument which may go still a contestable question and I -- of (Inaudible) that's perfectly imagined belief.
Joseph S. Kaufman: Your -- Your Honor, I didn't make this argument --
Felix Frankfurter: I'm not -- I'm not --
Joseph S. Kaufman: -- for that reason.
Felix Frankfurter: -- saying you made it. I'm --
Joseph S. Kaufman: We --
Felix Frankfurter: -- suggesting it.
Joseph S. Kaufman: I just feel unfairness to the Court. We would frankly, Attorney General Finan and I, we'd like to have the question answered, but we feel --
Hugo L. Black: (Inaudible) may change the judgment, we may, if we please.
Hugo L. Black: Yes.
Joseph S. Kaufman: I think that on --
Hugo L. Black: It wasn't just a judgment just as in this particular case.
Joseph S. Kaufman: I think that might be the effect of it, sir. And I --
Hugo L. Black: We would (Inaudible) that's our practice.
Charles E. Whittaker: This is mandamus. I think --
Joseph S. Kaufman: Yes, sir. It's a petition for mandamus.
Charles E. Whittaker: It's an order requiring the Clerk to issue this -- to this position without (Inaudible)
Joseph S. Kaufman: That would -- that would have to be the decision of the Court. That's correct.
Charles E. Whittaker: But with the judgment being down next Tuesday in favor of petitioner, could it be carried out?
Joseph S. Kaufman: My -- in my opinion, sir, it could not, because the term for which he was appointed wouldn't have expired.
Felix Frankfurter: This Court had a case like this that an appointed question of other -- something rather (Inaudible) in which under this discrimination because of color or before the courts and the -- the election was imminent of -- had in fact expired by the -- has been taking place by (Inaudible) and this Court says “We can." This is an non-billable office, a non (Inaudible) office.
Joseph S. Kaufman: Well, if Your Honor please, I -- I apologize for our failure to brief it. We, in all good faith, did not realize the significance of this because all other of our elective officers of course, do not expire at this time. They expire at another time, but the Notary Public has a two-year office whereas, our elective offices are for four years. If Your Honors please, I would like to relate to the provisions of Article VI of the Constitution of the United States, which my brothers representing the appellant contend or read into and made part of the Fourteenth Amendment and therefore, applicable to the States. We feel that this is a very violent assertion. We feel that there is no support for that provision anywhere as in the cases of this Court. And we further feel that the terms of the Article VI manifestly, themselves, do not lead to such a conclusion. The provisions of Article VI, Section 3, provide that the members of the state legislatures must in their oath of office, agree to support the Constitution of the United States. Now, the second sentence which refers to the test oath only applies to officers under the United States, merely and purposely we say, excluding state officers because the first clause thereof, related to State officers, the second clause is absolutely silent as to state officers. And we would think that the old Latin term, “expressio unius est exclusio alterius” would clearly apply to that situation.
Hugo L. Black: Would that not apply on the same fashion for the First Amendment that said Congress would make no law?
Joseph S. Kaufman: Well, if Your Honor please, that this Court has held that the provisions of the First Amendment are incorporated by reference into the Fourteenth Amendment and therefore become a part thereof. And I --
Hugo L. Black: Wouldn't that -- wouldn't the same argument apply to both?
Joseph S. Kaufman: I think not, sir. Because of the manner in which the first sentence and the second sentence of that clause of the Constitution or stated, the first sentence relating to both federal and state officers, the second sentence relating purely to federal officers. Now, if Your Honors please, I'd like to -- in concluding our argument, state why we think this is a reasonable provision and why it has been in our Maryland Constitution for all these years, it's been in the Constitution expressly of some seven other states and many other states in their constitutions have clauses which, “And so help me God.” Even the Virginia Constitution, which my brothers claim that the Virginia statutes were so pointed towards preventing their constitution on the oath of officers ends with the language, “So help me God.” We think that all of these references to God in this Court, in our legislative bodies by our Executive, in our state constitutions, in the preambles of our state constitutions show that this is a religious nation, that we are a religious people and being a religious people isn't it a reasonable requirement that our public officers have a religious foundation? Now, we say that Your Honors -- please Your Honor, that this does have a reasonable relation to the circumstances of life as we know them and therefore, is not an unreasonable restriction or qualification for public office. This has been shown many times by this Court in the most recent case, the Zorach case. Mr. Justice Douglas in his majority opinion stated that this is a religious people whose institutions are based upon the presumption of a Supreme Being. We have many other factors which this Court has upheld. In the polygamy cases in Idaho and Utah, it was so held. Now, if Your Honor please, we'd like to just mention to the Court something that was overlooked by the lower court. It's a case of Church of the Holy Trinity versus United States, which was written by Mr. Justice Brewer in the 1890s. In that case, Mr. Justice Brewer in the opinion for a majority of this Court expressly cited the very provision that is now before the Court. He cited this in connection with other state constitutions, which had references to the Supreme Being, to our recognition and reliance upon a Supreme Being. And this is what Mr. Justice Brewer said, “There is no dissidence in these declarations. There is a universal language pervading them all having one meaning. They affirmed and reaffirmed that this is a religious nation. These are not individual sayings, declarations of private persons. They are organic orders -- utterances. They speak the voice of the entire people.”
John M. Harlan II: What's this from?
Joseph S. Kaufman: This is from Church of the Holy Trinity versus United States 143 U.S.457, cited on the appellees' brief. If --
Charles E. Whittaker: (Inaudible)
Joseph S. Kaufman: 143, 457 sir. If these utterances, the very one that we have before this Court today are organic utterances and speak the voice in the entire people, isn't it reasonable to have such a requirement? Surely, it does have a reasonable relation to the circumstances of life as we know them. And so this Court in other cases in the school transportation case, the Everson case and the school book case, the Cochran case and other cases, the released time case, Zorach versus Clauson. That is held, “That we are not going to be invidious to religion, but there is a proper place for both in our society as long as it is reasonable.” And we say this is reasonable in this instance. We only have to look to our various congressional acts in which when we pledge allegiance to the flag. We recognize that this is one nation under God. Our coins that we hold on our pocket contain the phrase, “In God, we trust.” Our national anthem says that our motto, “In God is our trust.” And the very opening of this Court recognizes that the functions of this Court are under the surveillance of a Supreme Being.
Hugo L. Black: We will reference to the pledge of allegiance to the flag, a happy one?
Joseph S. Kaufman: I didn't clearly understand, Your Honor's --
Hugo L. Black: With your reference to the allegiance to the flag, a happy one in this case?
Joseph S. Kaufman: A happy one?
Hugo L. Black: Yes. I thought that we held that the children could not be made to do that.
Joseph S. Kaufman: That's a matter of compulsion if Your Honor please, but the --
Hugo L. Black: But it's a matter of compulsion if you put disabilities on the man who told you, he doesn't believe in religion, isn't it?
Joseph S. Kaufman: We know, sir. We're not compelling him to worship in any manner other than the manner which he desires.
Hugo L. Black: Of what other -- what other jobs the positions could be cut off or affirmed by the State for being an atheist in your judgment? How can you stop it?
Joseph S. Kaufman: None, sir. Other than -- other than --
Hugo L. Black: How can you stop it?
Joseph S. Kaufman: Others -- other than officers of profit or trust created by the State.
Hugo L. Black: Well, that's -- that's all you have now? But what reason is there to stop there, if you have a right to put those disabilities on them?
Joseph S. Kaufman: Well, if Your Honor please, we -- we don't think that we are infringing upon his job. There's no allegation in the complaint that we have in any way fringed upon his private job, his employment or anything else. The only assertion is that he is unable to perform the duties of a Notary Public.
Hugo L. Black: On the -- on the thing is that he can't be a Notary Public because he doesn't believe in a religion. Isn't that it?
Joseph S. Kaufman: He doesn't believe in existence of God, sir.
Hugo L. Black: Yes. They're the same thing.
Joseph S. Kaufman: We don't know what he believes in according to the complaint.
Hugo L. Black: Well, do you take it's the State's business to find out what people believe in?
Joseph S. Kaufman: We think it -- that it's a reasonable qualification for office, yes, sir.
Hugo L. Black: If for one minority, why not another minority?
Joseph S. Kaufman: Well, if Your Honor please, it's not a question of not for one minority or another minority. That people are entitled to know for their own security to know the nature in the public people who apply for public office. And this is one qualification on that.
Hugo L. Black: But you're not just asking to know you want to be barred from qualifications, as I understood it.
Joseph S. Kaufman: Well we -- we say he is unqualified. He could not receive his commission because he's not qualified. Now here, there might have been other reasons why he couldn't receive the commissions, but in this case, we have a requirement that he'd be a citizen of the United States and a resident of Maryland for a certain period to time.
Hugo L. Black: Suppose he belong to -- suppose he belonged to a sect, which he claimed believed in God and the State claimed it didn't, could they try that out on him?
Joseph S. Kaufman: I would think not sir. If he took the oath --
Hugo L. Black: But in other words (Voice Overlap) --
Joseph S. Kaufman: -- if the took the oath, he has the moral accountability then to -- to say that he took it correctly. We're not testing this up.
Hugo L. Black: Can a Unitarian be an officer in Maryland?
Joseph S. Kaufman: Can a Unitarian?
Hugo L. Black: Yes.
Joseph S. Kaufman: To the best of my knowledge, he can't.
Charles E. Whittaker: (Inaudible) had no constitutional right to be a Notary Public.
Joseph S. Kaufman: That is correct.
Charles E. Whittaker: But didn't he have a constitutional right not to be excluded on religious grounds?
Joseph S. Kaufman: Well if Your Honor please, he is not -- he has not qualified to hold any office in Maryland because he has refused to take an oath in the belief of the existence to God. This is not -- we don't contend this is a religious oath as such, because a religious oath as such, indicates a belief in one sect as opposed to another.
Charles E. Whittaker: Well, if this doesn't mean all that another person who does not in fact believes in God and he's willing to confess it can hold an office of profit or trust in Maryland.
Joseph S. Kaufman: That is correct, sir.
Charles E. Whittaker: The question is whether or not that's permissible on the First Amendment?
Joseph S. Kaufman: That's -- I think that's what it results itself into.
Earl Warren: Mr. Kaufman, you -- you mentioned the Everson case a few moments ago. But, what would you do with -- with this language where it says in that case, “On the other hand, other language of the First Amendment commands that New Jersey cannot pamper its citizens in the free exercise of their own religion? Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptist, Jews, Methodist, nonbelievers, Presbyterians or the members of any other faith, because of their faith or lack of it when receiving the benefits of public welfare legislation. No person can be punished for entertaining or professing religious beliefs or disbeliefs for church attendants and non-attendants.” Well, now --
Joseph S. Kaufman: If I understand Your Honor's question correctly --
Earl Warren: Yes. That's one of the later cases that you -- that you have cited in your briefs concerning the religious character of our -- of our Government and I'm not disputing that we are a religious people or that our Government does contemplate a belief in -- in God, but -- but this language in Everson speaks of punishing a person by refusing him the -- the benefits of welfare and legislation, because he doesn't happen to conform and this says that he -- it cannot be done regardless of whether he believes or disbelieves.
Joseph S. Kaufman: That is correct, sir. But it's a quite a different proposition when you're dealing with the qualifications for public office. Now, we have other qualifications in the Maryland Constitution for public office and to be a Notary Public, there are residence requirements. And we think that those are reasonable qualifications. We're not saying that he is a -- non-entitled to welfare benefits or welfare legislation benefits. We're saying he is not qualified to hold public office. The people of Maryland speaking in their constitution feel that this is a reasonable requirement and unless there is some constitutional prohibition, we think that the Court should say that it is none and unreasonable qualification for public office.
Earl Warren: But as one member of the Court asked if the Attorney General a few moments to ago, when you deprive a man of the right to hold public office, such as this or any other office in the State of Maryland, because of his religion for lack of it, are you not interfering with his liberty as an American citizen?
Joseph S. Kaufman: Well, you are to a certain degree, I agree restricting his liberty, but are you unconstitutionally restricting his liberty? Does he have a constitutional guarantee to that? We have many minor restrictions on liberty, but we say that they do not impinge upon any constitutional guarantee and that's what our contention is, here.
Charles E. Whittaker: Now, unless you -- now -- now, what would you -- how would you claim or get along the language of the West Virginia (Inaudible) case, the Barnettee -- the Barnettee case, that one may not be compelled to utter what is not in his mind.
Joseph S. Kaufman: Well, I think if Your Honor please, there's no compulsion here.
Charles E. Whittaker: I beg your pardon?
Joseph S. Kaufman: There's no compulsion in this case for Mr. Torcaso to be a Notary Public. We're not compelling him to accept that political office. He's accepting it because he wants it. He's applied for it, but he's not qualified for it.
Earl Warren: And all they were doing -- mayor was to say that children were not qualified to be in the public schools, if they didn't take the oath.
Joseph S. Kaufman: No, sir. I -- I don't think so. I think that that case, do it for the proposition that the parents of these children were compelled to send them there under criminal penalty in the event that they didn't send them to school.
Earl Warren: Yes.
Joseph S. Kaufman: And this was a part of the school process. I think the compulsion aspect is completely obliviated here because there is no compulsion to accept this political office. The point here is as distinguished from the Barnette case, is that there, the children had to go to school under a paying of criminal sanction and penalty to the parents, if the children did not attend.
Earl Warren: And they --
Joseph S. Kaufman: There is no such compulsion here.
Earl Warren: -- would not let them attend -- they wouldn't let them attend, if they didn't -- they didn't take the oath, isn't it right?
Joseph S. Kaufman: Well that -- that was the criminal compulsion there that they had a penalty in the event that they did not comply with the proceedings in the schools of West Virginia.
Hugo L. Black: If your state law said, no Protestant or Catholics, or no Jew either one, could not hold public office, would you say that was putting in a compulsion on him?
Joseph S. Kaufman: If Your Honor please, I don't think that's a case of compulsion. I think that would be unreasonable under those circumstances.
Hugo L. Black: Well, I understand unreasonable. I don't know exactly what that means, but would that be compulsion?
Joseph S. Kaufman: To hold public office, no sir.
Hugo L. Black: Yes. Would that be compulsion?
Joseph S. Kaufman: I think not.
Hugo L. Black: You think there'd be no compulsions put on him to belong to what the covered church was -- was decided with -- with any interest to Maryland to avoid possible trouble that this good citizen -- only citizen to this good church and hold a -- or is not?
Joseph S. Kaufman: But that's the -- that's the point here. We don't say Torcaso has to belong to church A or church B or church C, he can belong to any church, or not --
Hugo L. Black: But you say he can't -- you say he must belong to one in order to hold office.
Joseph S. Kaufman: He must -- he don't even have to belong --
Hugo L. Black: But he has to believe in one?
Joseph S. Kaufman: He has to believe in the existence of God that our --
Hugo L. Black: But judges (Voice Overlap) --
Joseph S. Kaufman: -- our rights come from some higher being than just man itself.
Hugo L. Black: The only question I was asking about compulsion. Suppose it said, no man, who's an atheist, can hold this job with the public and this job to the State, this job to the Federal Government, this job somewhere else, or this job over here or this job job over here. And finally, they got quite a number. Would you say still say there's no compulsion on him?
Joseph S. Kaufman: Well if Your Honor please, in my thinking, there's been no compulsion and there would be no compulsion.
Charles E. Whittaker: Suppose he's just an agnostic and he said now, in all good (Inaudible) I just don't know for the -- and therefore, I refuse to say that I believe in God. That man cannot hold office of trust for profit in Maryland?
Joseph S. Kaufman: That is correct, sir, if he refuses to meet the qualifying test.
Charles E. Whittaker: And that would be would it not, if he really didn't know and he was uncertain, wouldn't that be to make him say something that was not in his mind?
Joseph S. Kaufman: I don't think so, sir. He -- he's not required to say it. If he doesn't know then he shouldn't say anything. He's not required to say it.
Charles E. Whittaker: But those who are willing to say can hold office for trust or profit (Inaudible) but those who are unwilling to say it because they're doubtful are denied to it or denied the right of one of the (Inaudible)
Joseph S. Kaufman: That's correct, sir.
Hugo L. Black: What do you do with the statement about Justice Roberts, I believe it was in Cantwell, that belief is invaluable? The biggest government, the most powerful government can't interfere with this. But we're not trying to interfere with his belief. He can believe as we said before in anything he desires to believe in, but the question is, if he does not believe in the --
Hugo L. Black: Because it's just a small job, the State had.
Joseph S. Kaufman: Or he can --
Hugo L. Black: Suppose it's a big job, suppose the government.
Joseph S. Kaufman: He can -- he can hold any employment in the State as a ministerial officer, but he cannot hold a political office or office for profit, because the people of the State feel that that is a reasonable requirement as expressed in the Constitution.
Hugo L. Black: Do you think that people of Maryland have a right to use that judgment of what's reasonable to bar people from having office, because they do not believe in God?
Joseph S. Kaufman: Well, if Your Honor, I -- I must say that I think the people through the constitutional process, do have that right. They have recognized in the very preamble to the Constitution, itself. The Constitution of Maryland that they're -- all their rights under their -- the Maryland Government come from God. The preamble to the Constitution of Maryland itself is based upon that assumption.
Felix Frankfurter: What does it say, Mr. Kaufman?
Joseph S. Kaufman: It says, “We, the People of State of Maryland, grateful to Almighty God for our civil and religious liberty, and taking into our serious consideration the best means of establishing a good Constitution in the State and with a sure foundation -- for the sure foundation and more permanent security thereof, declare.”
Hugo L. Black: What do you think they meant by grateful power, civil and religious liberty?[Laughter]
Joseph S. Kaufman: Well, I think they meant grateful to our -- as far as religious liberty is concerned, they have freedom of -- to worship in any sect or cult that they desire. Because just as this Court in the Davis versus Beason case, defined religion as the manner in which one fulfills his obligation to his maker. This Court recognized that there is a Supreme Being. Mr. Justice Hughes -- Mr. Chief Justice Hughes in speaking of it said, “One cannot speak of religious liberty, but proper appreciation of its essential and historical significance without assuming the existence of a belief in supreme allegiance to the will of God.”
Hugo L. Black: Do you find anything in that to support your belief that Mr. Chief Justice Hughes supported a test oath, religious test oath?
Joseph S. Kaufman: Well, if Your Honor please, I can only quote from his language that the religious liberty and existence of a belief in a supreme allegiance to the will of God are essential one to the other. And I might say, if Your Honor please, in the Davis versus Beason case, there was an oath in that case that had to be taken to the effect that you did not believe in polygamy or it did not belong to any organization that advocated polygamy in order to hold public office in the territory of Idaho. And this Court said that that did not invade the religious liberty and the person involved because in our free society, persons who believe under the guise of religion and under the statement of religion and things that are inimicable to our society cannot hold public office.
Earl Warren: Well, that -- that was because polygamy was a -- a crime under -- under the law, isn't it?
Joseph S. Kaufman: It was a -- it was crime under the territory law. That's --
Earl Warren: Yes.
Joseph S. Kaufman: -- but this --
Earl Warren: There's no -- nothing in -- in Maryland that makes this a crime, is it?
Joseph S. Kaufman: No, sir.
Earl Warren: To not believe --
Joseph S. Kaufman: Not to believe and there's --
Earl Warren: Yes.
Joseph S. Kaufman: -- nothing that makes it a crime.
Earl Warren: Yes.
Hugo L. Black: You concede you couldn't do that, don't you?
Joseph S. Kaufman: Yes, sir. I wouldn't want to do it.
Felix Frankfurter: What you're saying is that if it is a legal doctrine, but we are religious people presumably, religious people can -- can take measures to sustain the presupposition of their society, that's what you're saying, isn't it?
Joseph S. Kaufman: Well, I -- you stated it not quite as I would, but I think that -- that --
Felix Frankfurter: I'm not saying I do [Laughter] what I said, but it -- it is not with that presupposition.
Joseph S. Kaufman: We -- we must --
Felix Frankfurter: The Court does a lot of talk in -- in cases and opinion to this Court which have to be looked at (Inaudible) that hard, if you were to take it literally, isn't that right?
Joseph S. Kaufman: Sir, I -- I think that you, of course, have to see what the case holds and that -- then fit the language to the holding of the case, but before, and I'm trying to say here is, it is not unreasonable for -- because of this requirement -- because our whole form of Government is based upon this presupposition.
Felix Frankfurter: That's what opinions say.
Joseph S. Kaufman: Opinions say in their --
Felix Frankfurter: Take that at --
Joseph S. Kaufman: -- in their flat holdings, if Your Honor please, in the day of this Beason case was a flat holding.
Earl Warren: Mr. Kaufman, in view of the fact that mootness was raised for the first time, would you mind giving us a -- a memorandum before Friday with your views concerning mootness?
Joseph S. Kaufman: I'll do it -- even before then, if Your Honors --
Earl Warren: Well, just to show that you can, but so we'll have it by -- by Friday and I'll ask counsel. They'll decide to do the same thing, if they will.
Hugo L. Black: Before Friday.
Earl Warren: Yes, before Friday.
Joseph S. Kaufman: I'll be glad to do that, sir.
Earl Warren: Thank you very much.
Joseph S. Kaufman: In light of the fact that -- that we are going to submit a memorandum, I won't discuss the question of the possible mootness before the Court. To allay the fears of the Attorney General as to whether the restriction on married ceremonies in Maryland might be tested which requires religious ceremonies and say that Mr. Torcaso along with his wife and three children, is not going to be the one to test that particular provision.
William J. Brennan, Jr.: Well, I gather he was married by a minister (Inaudible)
Joseph S. Kaufman: I'm not sure whether he's married in Maryland.[Laughter]
Hugo L. Black: He might have been married in New York.
Joseph S. Kaufman: That's possible.[Laughs]
Felix Frankfurter: That's not a religous (Inaudible)
Joseph S. Kaufman: As far as this, “So help me God,” as it patched to oath, we covered this in our brief. There are a wide span of oaths, some of which are set out in -- in law which have the words, “So help me God”, some did not. This doesn't affect whether it's an oath or not. As a matter of fact, in the provision of the Maryland code itself, which sets out the oath of office on page 4 of the transcript of record, they don't have the words, “So help me God” there. It's on top of page 4 and they set this out completely. Now, as far as Hamilton versus University of California, there you had a problem in which the -- you had before the Court the question of the -- the right of a country to protect itself. The war power of the State versus the religious beliefs of individuals and the Court has held that the right to be a conscientious objector is a matter of grace and that was the issue that was before the Court in University of California, the Hamilton case in which ROTC was considered a part of self-preservation of -- of the State. Now, as far as the coercion aspect of this, may I refer the Court to the Cummings case in which -- Cummings versus Missouri, 18 L.Ed 356 in which at some length, they traced the history of religious test oaths, they traced the question, the denial of public office, denial of all sorts of benefits is a form of compulsion, is a form of penalty, they make the flat statement "disqualification from office maybe punishment" and they cite the history of -- of test oaths in England and France. Other examples would be denial of a tax exemption even more of a privilege if you want to put it on a privilege basis than the -- a public office. In Speiser versus Randall, you held that denial of a privilege there can infringe on constitutional rights. In the Dowd case, it was -- which -- which covered political leaders that it was -- the Court said that denying office of a political leader will infringe, but they determine whether or not, that it's reasonable under the -- under the conditions that existed. I listened. I did not hear the opposing counsel say why this was reasonable. They -- they kept emphasizing this is a reasonable qualification for office and I fail to hear one word as to why this was a reason for qualification. What this provision has to do with ensuring that an individual is going to do the job is going to perform the task of a Notary Public or any other public office. There was no word made in their argument covering why it was a reasonable qualification. In conclusion, I'd like to say that this case was anachronism of the 20th century. Many of the arguments that were made here were made in 18th and 19th century. And I urge the Court that this provision be sent back to the 18th and 19th century where -- with some emotion and fervor people argued about religious test oaths of this kind. Such an oath as this does not belong in the 20th century.