It lifts my heart to welcome my old friend Herb Silverman and his wife Sharon Fratepietro to Chatham from Charleston. It brings back some of the old days; if every case I had was as much fun as Herb’s, I wouldn’t be standing here today as a minister rather than a lawyer. I hope you will indulge me a little to tell the story as I remember it, and add a few reflections of my own, and then Herb will take it from there later on downstairs. If anything I say differs from what he says, he’s right because he wrote a book about it.
Herb was a math professor at the College of Charleston when he walked into my law office one day in 1990 and asked me if I was aware that you had to believe in God in order to hold public office in South Carolina. I said I don’t believe you, but on looking it up, I could see he was right. Two provisions of the South Carolina Constitution said that no religious test was required for public office except that no one could hold any office under that constitution who denied the existence of a supreme being. Herb told me he was an atheist.
I tried a lawyerly gambit, I said, “It doesn’t say believe in God, it says “denies the existence of a supreme being.” Are you saying you don’t believe in Diana Ross?
At any rate, my civil liberties dander was up: this was outrageous, this was medieval; I was fortunate to have a supportive set of law partners who let me go tilting at windmills when windmills needed tilting at; so off Herb and I went on what proved to be a seven- year campaign to have the provision declared unconstitutional. Spoiler alert: we won, after first losing.
In the interests of time and my bruised ego, we will pass over the federal case we lost. That involved running him for governor, and we lost it because of what lawyers call ripeness grounds, not a decision on the merits of the constitutional claim.
So we took a breath and ran Herb for another office mentioned in the Constitution, the office of Notary Public. It is not usually considered a high-glamor position. Notaries public are mostly concerned with notarizing documents, though they can also perform marriages. I performed several civil marriages as a notary public before I became a minister. The applications are usually rubber-stamped at the governor’s office, but to set up the test case, we advised the Governor that Herb was an atheist, and to make the point clearer, he struck out from the oath at the bottom of the application the words “so help me God”.
Herb’s application was denied, which was just what we wanted, but the governor was trying to be cagey and would not say why it was denied. So we sued in state court for an order directing the governor to issue the Notary commission.
Now what we were doing at that point was basically an historical reenactment of the principal case from the US Supreme Court, which is called Torcaso v. Watkins, in 1961. That case came out of Maryland, and Mr. Torcaso wanted to be a notary public, but there was a provision in the Maryland Declaration of Rights which was almost identical to the South Carolina provision, it said that no religious test shall be required for public office “other than a declaration of belief in God.”
Mr. Torcaso was appointed to the office of Notary Public but the state refused to issue the commission because Torcaso refused to declare a belief in God. So Torcaso sued. And some thirty years later in South Carolina, Herb Silverman sued for his Notary commission.
In Torcaso’s case, the US Supreme Court ruled unanimously that the religious test of the Maryland Declaration of Rights was unconstitutional. There were two grounds for this holding.
The first ground was that there is a provision in the main body of the US Constitution, not in the amendments, which holds that no religious tests shall be allowed for public office. Period. No exceptions for atheists.
The Torcaso decision helpfully explains where this provision of the federal constitution came from in history:
There is, and can be, no dispute about the purpose or effect of the Maryland Declaration of Rights requirement before us -- it sets up a religious test which was designed to,
and, if valid, does, bar every person who refuses to declare a belief in God from holding a public "office of profit or trust" in Maryland. The power and authority of the State of Maryland thus is put on the side of one particular sort of believers -- those who are willing to say they believe in "the existence of God." It is true that there is much historical precedent for such laws. Indeed, it was largely to escape religious test oaths and declarations that a great many of the early colonists left Europe and came here hoping to worship in their own way.”
However, the Court pointed out, as I pointed out last week, that many of those who fled religious persecution in Europe became persecutors themselves when they set up colonies in America. So there were all kinds of test oaths in the early colonies.
In a footnote, the court mentioned the problem with test oaths in the opinion Oliver Ellsworth, one of the delegates to the Constitutional Convention who was later an early Chief Justice:
"In short, test laws are utterly ineffectual; they are no security at all, because men of loose principles will, by an external compliance, evade them. If they exclude any persons, it will be honest men, men of principle, who will rather suffer an injury than act contrary to the dictates of their consciences. . . ."
Since the Torcaso case arose in Maryland, it was appropriate that the Supreme Court opinion also mentioned what had happened to George Calvert, Lord Baltimore, one of the founders of the Maryland colony:
There were, however, wise and farseeing men in the Colonies -- too many to mention -- who spoke out against test oaths and all the philosophy of intolerance behind them. One of these, it so happens, was George Calvert (the first Lord Baltimore), who took a most important part in the original establishment of the Colony of Maryland. He was a Catholic and had, for this reason, felt compelled by his conscience to refuse to take the Oath of Supremacy in England at the cost of resigning from high governmental office. He again refused to take that oath when it was demanded by the Council of the Colony of
Virginia, and, as a result, he was denied settlement in that Colony.... A recent historian of the early period of Maryland's life has said that it was Calvert's hope and purpose to establish in Maryland a colonial government free from the religious persecutions he had known -- one "securely beyond the reach of oaths. . . ."
So it was to secure public office-holding from the religious tugs-of-war that the Founding Fathers inserted a specific provision against religious tests for public office. In the Torcaso case, the US Supreme Court went on to find a second ground by which the religious test there was unconstitutional: it was a violation of the First Amendment provision dealing with an establishment of religion, what is called the Establishment Clause. Perhaps a general belief in God is as broad a definition of religion as possible, but in applying it to a case involving an atheist, the Supreme Court was making an important holding that the Establishment Clause didn’t just mean
that you can’t have Episcopalianism or Congregationalism as the state religion. It means you can’t have theism either. Or, for that matter atheism.
We won Herb’s case, as I said, by staging an exact reenactment of the Torcaso case more than three decades later. In fact the South Carolina Supreme Court in its unanimous opinion, noted that the state had never argued that there was any ground of distinction between the case Herb had brought and Torcaso, because there was no distinction.
Now that‘s a lot of legalese, and for your kind attention thus far I want to reward you with two fun facts before I go on to the broader implications. Fun fact number one is that I started Divinity School while I was still handling Herb’s case, and one of the people I met in the folk scene in Cambridge, someone Jacqueline had known for some time, was Bill Torcaso. That’s not an everyday name, so I asked him if he was related to the person named in that Supreme Court case, and he told me he was his son. Very nice guy, he’s a Facebook friend of mine.
And the second fun fact is that before we went to the state supreme court in the Notary Public case, we had a hearing at the trial level before a judge named Tommy Hughston. I had had many dealings with Judge Hughston before this case and I had found him to be a very straight arrow, likeable, fair but no radical. But Judge Hughston got his dander up on this case, because he could see that the state’s lawyers had really jerked Herb and me around trying to avoid having a section of the state constitution declared unconstitutional when it patently was. I don’t know whether it was our case that radicalized him but the next time I visited Charleston I was surprised to run into Judge Hughston at an unlikely place: coffee hour at the Unitarian Church of Charleston. Ever since Herb’s case, he has become one of the most active members of my home congregation there.
What does this all mean? It has to do with religious freedom, in my book. What it teaches is that religious freedom is not just a matter of freedom to believe, it is just as importantly a freedom from belief.
Unitarians and Universalists, as well as Moravians, Mennonites, Amish and dozens of other groups are the spiritual descendants of heretics. Each deviates in some significant way from the mainstream Christian and Jewish faiths.
Now let me go back a little further into religious history. The test oaths that so bedeviled people in the eighteenth centuries had their religious origins back in the first century. My own inquiries into early Christianity convince me that the emphasis “belief” in such and such a religious proposition became important only late 1st century Christianity with the Gospel of John. That Gospel made “belief” in the resurrection of Christ a litmus test for who was going to heaven and who wasn’t – the famous John 3:16 you will see on the bumper stickers of evangelicals. In the Torah, God does not demand of the Jewish people that they believe in him, but that they be loyal to him and follow the rules he lays down. Earlier strains of Christianity, before John, emphasized faith rather than belief.
But the Gospel of John’s proposition that belief was what saved you grew into creeds, whole statements of belief, that were required to be said aloud before a person could be admitted to the sacraments which would lead to eternal life. Or before a minister could be ordained. Or before a person could hold public office.
In the direction Christianity took, it wasn’t enough to follow the divine law; it wasn’t enough to try to love your neighbor; you had to recite specific formulas. And of course a requirement by those in power that everyone recite formulas squelches honesty and encourages hypocrisy.
This element of Christianity led, in the period following the Protestant Reformation, to the competing loyalty oaths we have already talked about. And this established a pattern; whenever society felt threatened from within, it imposed loyalty oaths as a way to weed out those whose fealty was suspect, and set up a persecution of scapegoats.
This leads into one of the most important cases in our law: West Virginia vs. Barnett. The year is 1943, right in the middle of World War II. We are fighting totalitarian regimes in Spain, Italy, Germany, Japan, and we are allied with a totalitarian regime in the Soviet Union. There is a xenophobia in the land which leads to the mass incarceration of Americans of Japanese descent, one of the most shameful points of our history. West Virginia, like a lot of states, enacts a law requiring that students be instructed in patriotism and made to recite a pledge of allegiance to the flag.
The law is challenged by Jehovah’s witnessers who say that their religion requires loyalty to God and prohibits swearing allegiance to the state. In 1941, the Supreme Court had decided in favor of such a law in a case out of Pennsylvania. But two years later, with a change in the composition of the court, they reach the exact opposite conclusion in the Barnett case out of West Virginia.
The statute at issue in Barnett said that schools could require patriotic observances such as salutes to the flag and recital of the pledge of allegiance and punish kids who refused to do them.
In striking down this statute as applied to Jehovah’s Witness kids, the court emphasized that what the law did was to compel statement which were against the religious beliefs of the kids:
Here, however, we are dealing with a compulsion of students to declare a belief.
Justice Murphy noted in a concurring opinion:
“The right of freedom of thought and of religion, as guaranteed by the Constitution against State action, includes both the right to speak freely and the right to refrain from speaking at all.”
There is much that is beautiful in the opinion and I commend it to your reading, but after turning the issues inside and out, the court finally reaches the resounding conclusion which I have already read to you, a conclusion that warms the heart of liberals such as me because it is a principle worth fighting or even dying for:
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.” 
That was 1943. In 1977, the Supreme Court reaffirmed that the First Amendment does not allow a state to compel speech or belief. It was again a Jehovah’s Witness, this time in the great state of New Hampshire, who brought the case. This citizen objected to the New Hampshire state motto, “live Free or Die” on his license plate. His religion taught him he was going to heaven but while he was alive he was not prepared to die either for liberty or the State of New Hampshire. So he covered over the words “or die” on his license plate, and he was hauled into court for it.
But he won in the Supreme Court, which saw the case as just an extension of the Barbette case from 1943. They said,
We begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all. A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’”
So here is what I would like us to take away this morning: a sense of gratitude that we live in a free country and we can practice a free religion in it. Unitarian Universalism is sometimes described as the religion which questions all your answers. Those questions, those doubts, are an integral part of the process of seeking truth.
Atheists have a hard time in this country founded, in part, by Puritans seeking a “city on a hill” by which they meant a theocracy where everyone would believe and profess a belief in God. On the other hand, there have been atheist regimes in the twentieth century, both right wing and left wing, which have penalized those who believe in God. Those Americans who fought the Nazis and fascists in the 1940s and the Communists up until 1989 overreacted to those atheist regimes with a public piety which expressed itself in a new national motto, In God We Trust, with insertion of the words “under God” in the Pledge of Allegiance and institution of such events as the National Prayer Breakfast. Some commentators describe this as creating a new civic religion.
We’re not distinguished from the Nazis or Communists because we believe in God; we’re distinguished from them because we believe in freedom, and freedom, properly understood, means the freedom from belief as well as the freedom of belief.
Reading West Virginia v. Barnette
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”
Torcaso v. Watkins 367 US at 490.
West Virginia vs. Barnette 310 US at 604
319 U. S. at 642
Wooley v. Maynard,430 U.S. 705 (1977)
Wooley v. Maynard, 430 US at 714 (1977).