Religious Tests, Education, and Freedom of Religion in State Constitutions

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Religion in state constitutions often puts them at odds with the U.S. Constitution: the freedom of religion and the separation of church and state as established in the First Amendment. Many have religious tests and no clear statements prohibiting the promotion of religion in public schools.

state constitutions, religion in state constitutions, separation of church and state, religious tests, no religious test, religion in public schools, religious freedom, freedom of religion, freedom of conscience, first amendment, U.S. constitution, Texas constitution,(2-20-2019)  Children in many Texas public schools pledge allegiance to both the flag of the U.S.A. and the Texas Constitution. Assuming that pledging allegiance to the flag of the United States is considered the equivalent of a pledge of allegiance to the U.S. Constitution — given that the kids don’t pledge allegiance to the Texas flag —  I wonder for which pledge the kids keep their fingers crossed behind their backs. I’m being sarcastic, of course. I’m pretty sure neither the kids nor many teachers are aware they’re pledging allegiance to contradictory documents.

It’s also possible that whoever came up with the idea purposely had the kids pledge allegiance to unequal items (a federal piece of cloth and the Texas Constitution); that they know the two constitutions contradict each other, and that this is their sneaky way of making innocent little minds pledge against the U.S Constitution. I’m shocked!

The First Amendment to the U.S. Constitution guarantees freedom of religion:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof […]

And Article VI of the US Constitution states that:

[…] no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Religion in state constitutions is approached differently. At first glance, the Texas Bill of Rights claims the same:

No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship.

The italics are mine, because there’s also this:

No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall anyone be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.

Not only does the Texas Constitution contradict the U.S. Constitution; it contradicts itself. Either you don’t “interfere with the rights of conscience in matters of religion,” or you require that office holders are religious. You either have separation of church and state or you don’t. Both cannot be true at the same time.

So, what about religion in state constitutions overall? In the previous post I discussed religion in the preambles. I also looked for other mentions of religion, specifically: religion in the Bills of Rights, if they have religious tests like Texas, and what is stated about religion in Education sections of the constitutions. I’m not a lawyer; I’m just looking at each text on its face. I also realize (or sincerely hope) that in reality many states no longer practice what they preach — pardon the pun. The final result of this fun little religion test was quite unexpected and just shows that it’s complicated.

Freedom of Religion

In determining if a state is serious about freedom of religion, I first looked for language in the religious freedom clauses that could include more religions than just Christianity.  I counted 34. The 16 state constitutions that don’t: AL, AZ, AR, CA, FL, IA, MA, NE, NV, NH, NC, OH, PA, SC, TN, VT.

When I looked for language that could (more or less clearly) include people with no religion (like yours truly!) or people who practice religions that don’t involve supreme beings, the number of constitutions that qualified went down to 30. Many of these include variations of this clause (Kansas):

The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship. (Italics mine.)

So, I interpret this to mean not only that someone can’t be forced to attend or support any form of worship other than their own, but also that it conceives of atheism, whether the writers did or not.

In 20 cases religion in state constitutions definitely mean Christianity: AL, AR, AZ, CA, DE, FL, IA, LA, ME, MD, MA, MN, MS, NV, NM, NC, OH, SC, TN, TX.

I like Utah’s freedom of religion clause best. It begins with conscience instead of worshipping, so it’s more neutral, including everyone:

The rights of conscience shall never be infringed. The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof […]

Washington’s comes a close second:

Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion […]

On the other hand, the Vermont constitution insists in its freedom of religion clause that,

every sect or denomination of christians (sic) ought to observe the sabbath or Lord’s day, and keep up some sort of religious worship, which to them shall seem most agreeable to the revealed will of God.

New Hampshire goes a step further in blurring the separation of church and state:

As morality and piety, rightly grounded on high principles, will give the best and greatest security to government, and will lay, in the hearts of men, the strongest obligations to due subjection; and as the knowledge of these is most likely to be propagated through a society, therefore, the several parishes, bodies, corporate, or religious societies shall at all times have the right of electing their own teachers, and of contracting with them for their support or maintenance, or both.

Massachusetts takes the cake, or should I say the pumpkin pie? Visions of Thanksgiving figurines will dance in your head:

As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality: Therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.

And the people of this commonwealth have also a right to, and do, invest their legislature with authority to enjoin upon all the subjects an attendance upon the instructions of the public teachers aforesaid, at stated times and seasons, if there be any on whose instructions they can conscientiously and conveniently attend.

Provided, notwithstanding, that the several towns, parishes, precincts, and other bodies politic, or religious societies, shall, at all times, have the exclusive right of electing their public teachers, and of contracting with them for their support and maintenance.

And all moneys paid by the subject to the support of public worship, and of the public teachers aforesaid, shall, if he require it, be uniformly applied to the support of the public teacher or teachers of his own religious sect or denomination, provided there be any on whose instructions he attends; otherwise it may be paid towards the support of the teacher or teachers of the parish or precinct in which the said moneys are raised.

Any every denomination of Christians, demeaning themselves peaceably, and as good subjects of the commonwealth, shall be equally under the protection of the law: and no subordination of any one sect or denomination to another shall ever be established by law.

To be fair to New Hampshire and Massachusetts, their constitutions predate the U.S. Constitution, by six and nine years respectively. On the other hand, they’ve had the most time to make changes.

No Religious Test

If states claim to have no religious tests, but do require an oath of new office holders, witnesses, and/or jurors that ends in “So help me, God,” I let that slide, for the same reason as I let “In the year of our Lord” slide – to a certain degree this was just the language of the time of writing. (And because I don’t want to be accused of being a totally unreasonable, rabid hell witch. I suddenly feel that being called a witch could have consequences!)

These 16 constitutions didn’t pass my no-religious-test test: AR, AZ, CA, FL, IA, MA MD, NV, NH, NC, OH, PA, SC, TN, TX, VT.

As I mentioned in the beginning, the Texas Constitution says the following about religious tests:

No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall anyone be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being. (Italics mine.)

The Maryland Constitution also claims,

that no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God,

and

[…] nor shall any person, otherwise competent, be deemed incompetent as a witness, or juror, on account of his religious belief; provided, he believes in the existence of God, and that under His dispensation such person will be held morally accountable for his acts, and be rewarded or punished therefore either in this world or in the world to come. (Italics mine.)

North Carolina drops all pretense of any separation of church and state:

The following persons shall be disqualified for office: First, any person who shall deny the being of Almighty God…

And so does South Carolina:

No person who denies the existence of the Supreme Being shall hold any office under this Constitution.

The Massachusetts Constitution prescribes a list of virtues required of office holders:

A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty, and to maintain a free government. The people ought, consequently, to have a particular attention to all those principles, in the choice of their officers and representatives: and they have a right to require of their lawgivers and magistrates, an exact and constant observance of them, in the formation and execution of the laws necessary for the good administration of the commonwealth.  (Italics mine.)

Tennessee, for some reason, went the other way with its religious test:

Whereas ministers of the Gospel are by their profession, dedicated to God and the care of souls, and ought not to be diverted from the great duties of their functions; therefore, no minister of the Gospel, or priest of any denomination whatever, shall be eligible to a seat in either House of the Legislature.

Personally, I couldn’t agree more, but that’s what constitutions are for — to guarantee the rights of everyone. It should go both ways. If a constituency elects a minister of the gospel who doesn’t get anything done because he’s too busy preaching in Congress instead of writing or supporting bills, he won’t get re-elected. If he does, the constituents apparently want a preacher in the Congress instead of someone who gets things done. That’s still their choice. (Majority rule vs. proportional representation is a different matter.)

Again, the Utah Constitution is my favorite:

[…] no religious test shall be required as a qualification for any office of public trust or for any vote at any election; nor shall any person be incompetent as a witness or juror on account of religious belief or the absence thereof. (Italics mine.)

Hooray! Acknowledgment of our existence!

No Religion in Public Schools

So, by now it won’t surprise you that only seven state constitutions specifically declare that there shall be no religion promoted or taught in public schools: CA, ID, MN, MT, SD, WI, WY.

The Colorado Constitution states that no public school employee or student is required to attend any religious activity, but it’s not clear to me if that could include religious activities at school:

… no teacher or student of [a public] school or institution shall ever be required to attend or participate in any religious service whatsoever.

For Maryland it’s separation schmeparation:

Nothing shall prohibit or require the making reference to belief in, reliance upon, or invoking the aid of God or a Supreme Being in any governmental or public document, proceeding, activity, ceremony, school, institution, or place.

And in Mississippi,

No religious test as a qualification for office shall be required; and no preference shall be given by law to any religious sect or mode of worship; but the free enjoyment of all religious sentiments and the different modes of worship shall be held sacred. The rights hereby secured shall not be construed to justify acts of licentiousness injurious to morals or dangerous to the peace and safety of the state, or to exclude the Holy Bible from use in any public school of this state. (Italics mine.)

The Constitutions of Michigan, Nebraska, and North Carolina all have more or less the following phrase:

Religion, morality and knowledge being necessary to good government and the happiness of mankind,… schools and the means of education shall be forever encouraged.

Correction: Nebraska doesn’t care about the happiness of mankind, and North Carolina includes libraries.

West Virginia public schools

[…] provide a designated brief time at the beginning of each school day for any student desiring to exercise their right to personal and private contemplation, meditation or prayer, […]

as long as it stays personal and private and doesn’t become part of the school curriculum.

Wisconsin doesn’t allow religious instruction in its public schools, but,

[…] for the purpose of religious instruction outside the district schools, [they may] authorize the release of students during regular school hours.

No Public Funds to Sectarian Schools

Only 27 state constitutions — just more than half — specify that no public funds shall go to sectarian schools or other religious organizations or individuals.

AL, AK, CA, CO, CT, DE, GA, HI, ID, IL, IN, KY, MI, MN, MS, MO, MT, NY, OK, SC, SD, UT, VA, WA, WI, WY.

Wisconsin figured, why not make some money?

Nothing in this constitution shall prohibit the legislature from authorizing, by law, the use of public school buildings by civic, religious or charitable organizations during nonschool hours upon payment by the organization to the school district of reasonable compensation for such use.

And the Winners of Tonight’s Contest Are…

Only four state constitutions check off all of my boxes: Idaho, South Dakota, Wisconsin and Wyoming.

Who knew?

Sources:

Header Image: mine

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