Appellee Paty, a candidate for delegate to a Tennessee
constitutional convention, sued in the State Chancery Court for a
declaratory judgment that appellant, an opponent who was a Baptist
minister, was disqualified from serving as delegate by a Tennessee
statutory provision establishing the qualifications of
constitutional convention delegates to be the same as those for
membership in the State House of Representatives, thus invoking a
Tennessee constitutional provision barring "[m]inister[s] of the
Gospel, or priest[s] of any denomination whatever." That court held
that the statutory provision violated the First and Fourteenth
Amendments. The Tennessee Supreme Court reversed, holding that the
clergy disqualification imposed no burden on "religious belief,"
and restricted
"religious action . . . [only] in the law making process of
government -- where religious action is absolutely prohibited by
the establishment clause. . . ."
Held: The judgment is reversed, and the case is
remanded. Pp.
435 U. S.
625-629;
435 U. S.
629-642;
435 U. S.
642-643;
435 U. S.
643-646.
547
S.W.2d 897, reversed and remanded.
THE CHIEF JUSTICE, joined by MR. JUSTICE POWELL, MR. JUSTICE
REHNQUIST, and MR. JUSTICE STEVENS, concluded:
1. The Tennessee disqualification is directed primarily not at
religious belief, but at the status, acts, and conduct of the
clergy. Therefore, the Free Exercise Clause's absolute prohibition
against infringements on the "freedom to believe" is inapposite
here.
Torcaso v. Watkins, 367 U.
S. 488 (which invalidated a state requirement that an
appointee to public office declare his belief in the existence of
God), distinguished. Pp.
435 U. S.
626-627.
2. Nevertheless, the challenged provision violates appellant's
First Amendment right to the free exercise of his religion made
applicable to the States by the Fourteenth Amendment, because it
conditions his right to the free exercise of his religion on the
surrender of his right to seek office.
Sherbert v. Verner,
374 U. S. 398,
374 U. S. 406.
Though justification is asserted under the Establishment Clause for
the statutory restriction on the ground that, if elected to public
office members of the clergy will necessarily promote the interests
of one sect or thwart those of another contrary to the
anti-establishment principle of neutrality, Tennessee has failed to
demonstrate that its views of the dangers of
Page 435 U. S. 619
clergy participation in the political process have not lost
whatever validity they may once have enjoyed. Accordingly, there is
no need to inquire whether the State's legislative goal is
permissible. Pp.
435 U. S. 626;
435 U. S.
627-629.
MR. JUSTICE BRENNAN, joined by MR. JUSTICE MARSHALL,
concluded:
1. The Free Exercise Clause is violated by the challenged
provision. Pp.
435 U. S.
630-635.
(a) Freedom of belief protected by that Clause embraces freedom
to profess or practice that belief, even including doing so for a
livelihood. The Tennessee disqualification establishes as a
condition of office the willingness to eschew certain protected
religious practices. The provision therefore establishes a
religious classification governing eligibility for office that is
absolutely prohibited.
Torcaso v. Watkins, supra. Pp.
435 U. S.
631-633.
(b) The fact that the law does not directly prohibit religious
exercise, but merely conditions eligibility for office on its
abandonment, does not alter the protection afforded by the Free
Exercise Clause. "Governmental imposition of such a choice puts the
same kind of burden upon the free exercise of religion as would a
fine . . . ,"
Sherbert v. Verner, supra at
374 U. S. 404,
and Tennessee's disqualification provision therefore imposed an
unconstitutional penalty on appellant's free exercise.
Moreover,
"[t]he fact . . . that a person is not compelled to hold public
office cannot possibly be an excuse for barring him from office by
state-imposed criteria forbidden by the Constitution."
Torcaso v. Watkins, supra, at
367 U. S.
495-496. Pp.
435 U. S.
633-634.
2. The Tennessee disqualification also violates the
Establishment Clause. Government generally may not use religion as
a basis of classification for the imposition of duties, penalties,
privileges, or benefits. Specifically, government may not fence out
from political participation people such as ministers whom it
regards as overinvolved in religion. The disqualification provision
employed by Tennessee here establishes a religious classification
that has the primary effect of inhibiting religion. Pp.
435 U. S.
636-642.
MR. JUSTICE STEWART concluded that
Torcaso v. Watkins,
supra, controls this case. Except for the fact that Tennessee
bases its disqualification, not on a person's statement of belief,
but on his decision to pursue a religious vocation as directed by
his belief, the situation in
Torcaso is indistinguishable
from the one here. Pp.
435 U. S.
642-643.
MR. JUSTICE WHITE concluded that the Tennessee disqualification,
while not interfering with appellant's right to exercise his
religion as he desires, denies him equal protection. Though that
disqualification is based on the State's asserted interest in
maintaining the required separation
Page 435 U. S. 620
of church and state, it is not reasonably necessary for that
objective, which all States except Tennessee have been able to
realize without burdening ministers' rights to candidacy. In
addition, the statute is both underinclusive and overinclusive. Pp.
435 U. S.
643-646.
BURGER, C.J., announced the Court's judgment, and delivered an
opinion, in which POWELL, REHNQUIST, and STEVENS, JJ., joined.
BRENNAN, J., filed an opinion concurring in the judgment, in which
MARSHALL, J., joined,
post, p.
435 U. S. 629.
STEWART, J.,
post, p.
435 U. S. 642,
and WHITE, J.,
post, p.
435 U. S. 643,
filed opinions concurring in the judgment. BLACKMUN, J., took no
part in the consideration or decision of the case.
MR. CHIEF JUSTICE BURGER announced the judgment of the Court and
delivered an opinion in which MR. JUSTICE POWELL, MR. JUSTICE
REHNQUIST, and MR. JUSTICE STEVENS joined.
The question presented by this appeal is whether a Tennessee
statute barring "Minister[s] of the Gospel, or priest[s] of any
denomination whatever" from serving as delegates to the State's
limited constitutional convention deprived appellant McDaniel, an
ordained minister, of the right to the free exercise of religion
guaranteed by the First Amendment. and made applicable to the
States by the Fourteenth Amendment. The First Amendment forbids all
laws "prohibiting the free exercise" of religion.
Page 435 U. S. 621
I
In its first Constitution, in 1796, Tennessee disqualified
ministers from serving as legislators. [
Footnote 1] That disqualifying provision has continued
unchanged since its adoption; it is now Art. 9, § 1, of the State
Constitution. The state legislature applied this provision to
candidates for delegate to the State's 1977 limited constitutional
convention when it enacted ch. 848, § 4, of 1976 Tenn.Pub.Acts:
"Any citizen of the state who can qualify for membership in the
House of Representatives of the General Assembly may become a
candidate for delegate to the convention. . . ."
McDaniel, an ordained minister of a Baptist Church in
Chattanooga, Tenn., filed as a candidate for delegate to the
constitutional convention. An opposing candidate, appellee Selma
Cash Paty, sued in the Chancery Court for a declaratory judgment
that McDaniel was disqualified from serving as a delegate and for a
judgment striking his name from the ballot. Chancellor Franks of
the Chancery Court held that § 4 of ch. 848 violated the First and
Fourteenth Amendments to the Federal Constitution, and declared
McDaniel eligible for the office of delegate. Accordingly,
McDaniel's name remained on the ballot, and, in the ensuing
election, he was elected by a vote almost equal to that of three
opposing candidates.
After the election, the Tennessee Supreme Court reversed the
Chancery Court, holding that the disqualification of clergy imposed
no burden upon "religious belief" and restricted
"religious action . . . [only] in the lawmaking process of
government -- where religious action is absolutely prohibited by
the establishment clause. . . ."
547
S.W.2d 897, 903 (1977).
Page 435 U. S. 622
The state interests in preventing the establishment of religion
and in avoiding the divisiveness and tendency to channel political
activity along religious lines, resulting from clergy participation
in political affairs, were deemed by that court sufficiently
weighty to justify the disqualification, notwithstanding the
guarantee of the Free Exercise Clause.
We noted probable jurisdiction. [
Footnote 2] 432 U.S. 905 (1977).
II
A
The disqualification of ministers from legislative office was a
practice carried from England by seven of the original States;
[
Footnote 3] later, six new
States similarly excluded clergymen from some political offices. 1
A. Stokes, Church and State in the United States 622 (1950)
(hereafter Stokes). In England, the practice of excluding clergy
from the House of Commons was justified on a variety of grounds: to
prevent dual officeholding, that is, membership by a minister in
both Parliament and Convocation; to insure that the priest or
deacon devoted himself to his "sacred calling," rather than to
"such mundane activities as were appropriate to a member of the
House of Commons"; and to prevent ministers, who, after 1533, were
subject to the Crown's powers over the benefices of the clergy,
from using membership in Commons to diminish its independence by
increasing the influence of the King and the nobility.
In re
MacManaway, [1951] A.C. 161, 164, 170-171.
The purpose of the several States in providing for
disqualification was primarily to assure the success of a new
political experiment, the separation of church and state. Stokes
622.
Page 435 U. S. 623
Prior to 1776, most of the 13 Colonies had some form of an
established, or government-sponsored, church.
Id. at
364-446. Even after ratification of the First Amendment, which
prohibited the Federal Government from following such a course,
some States continued pro-establishment provisions.
See
id. at 408, 418-427, 444. Massachusetts, the last State to
accept disestablishment, did so in 1833.
Id. at
426-427.
In light of this history and a widespread awareness during that
period of undue and often dominant clerical influence in public and
political affairs here, in England, and on the Continent, it is not
surprising that strong views were held by some that one way to
assure disestablishment was to keep clergymen out of public office.
Indeed, some of the foremost political philosophers and statesmen
of that period held such views regarding the clergy. Earlier, John
Locke argued for confining the authority of the English clergy
"within the bounds of the church, nor can it in any manner be
extended to civil affairs, because the church itself is a thing
absolutely separate and distinct from the commonwealth"
5 Works of John Locke 21 (C. Baldwin ed. 1824). Thomas Jefferson
initially advocated such a position in his 1783 draft of a
constitution for Virginia. [
Footnote 4] James Madison, however, disagreed, and
vigorously
Page 435 U. S. 624
urged the position which, in our view, accurately reflects the
spirit and purpose of the Religion Clauses of the First Amendment.
Madison's response to Jefferson's position was:
"Does not The exclusion of Ministers of the Gospel, as such,
violate a fundamental principle of liberty by punishing a religious
profession with the privation of a civil right? Does it [not]
violate another article of the plan itself which exempts religion
from the cognizance of Civil power? Does it not violate justice by
at once taking away a right and prohibiting a compensation for it?
Does it not, in fine, violate impartiality by shutting the door
[against] the Ministers of one Religion and leaving it open for
those of every other."
5 Writings of James Madison 288 (G. Hunt ed.1904).
Madison was not the only articulate opponent of clergy
disqualification. When proposals were made earlier to prevent
clergymen from holding public office, John Witherspoon, a
Presbyterian minister, president of Princeton University, and the
only clergyman to sign the Declaration of Independence, made a
cogent protest and, with tongue in cheek, offered an amendment to a
provision much like that challenged here:
"'No clergyman, of any denomination, shall be capable of being
elected a member of the Senate or House of Representatives, because
(here insert the grounds of offensive disqualification, which I
have not been able to discover) Provided always, and it is the true
intent and meaning of this part of the constitution, that if at any
time he shall be completely deprived of the clerical character by
those by whom he was invested with it, as by deposition for cursing
and swearing, drunkenness or uncleanliness, he shall then be fully
restored to all the privileges of a free
Page 435 U. S. 625
citizen; his offense [of being a clergyman] shall no more be
remembered against him, but he may be chosen either to the Senate
or House of Representatives, and shall be treated with all the
respect due to his brethren, the other members of Assembly.'"
Stokes 624-625.
As the value of the disestablishment experiment was perceived,
11 of the 13 States disqualifying the clergy from some types of
public office gradually abandoned that limitation. New York, for
example, took that step in 1846, after delegates to the State's
constitutional convention argued that the exclusion of clergymen
from the legislature was an "odious distinction." 2 C. Lincoln, The
Constitutional History of New York 111-112 (1906). Only Maryland
and Tennessee continued their clergy disqualification provisions
into this century, and, in 1974, a District Court held Maryland's
provision violative of the First and Fourteenth Amendments'
guarantees of the free exercise of religion.
Kirkley v.
Maryland, 381 F.
Supp. 327. Today, Tennessee remains the only State excluding
ministers from certain public offices.
The essence of this aspect of our national history is that, in
all but a few States, the selection or rejection of clergymen for
public office soon came to be viewed as something safely left to
the good sense and desires of the people.
B
This brief review of the history of clergy disqualification
provisions also amply demonstrates, however, that, at least during
the early segment of our national life, those provisions enjoyed
the support of responsible American statesmen, and were accepted as
having a rational basis. Against this background, we do not lightly
invalidate a statute enacted pursuant to a provision of a state
constitution which has been sustained by its highest court. The
challenged provision came to the Tennessee Supreme Court clothed
with the presumption of validity to which that court was bound to
give deference.
Page 435 U. S. 626
However, the right to the free exercise of religion
unquestionably encompasses the right to preach, proselyte, and
perform other similar religious functions, or, in other words, to
be a minister of the type McDaniel was found to be.
Murdock v.
Pennsylvania, 319 U. S. 105
(1943);
Cantwell v. Connecticut, 310 U.
S. 296 (1940). Tennessee also acknowledges the right of
its adult citizens generally to seek and hold office as legislators
or delegates to the state constitutional convention. Tenn.Const.,
Art. 2, §§ 9, 25, 26; Tenn.Code Ann. §§ 8-1801, 8-1803 (Supp.
1977). Yet, under the clergy disqualification provision, McDaniel
cannot exercise both rights simultaneously, because the State has
conditioned the exercise of one on the surrender of the other. Or,
in James Madison's words, the State is "punishing a religious
profession with the privation of a civil right." 5 Writings of
James Madison,
supra, at 288. In so doing, Tennessee has
encroached upon McDaniel's right to the free exercise of
religion.
"[T]o condition the availability of benefits [including access
to the ballot] upon this appellant's willingness to violate a
cardinal principle of [his] religious faith [by surrendering his
religiously impelled ministry] effectively penalizes the free
exercise of [his] constitutional liberties."
Sherbert v. Verner, 374 U. S. 398,
374 U. S. 406
(1963).
If the Tennessee disqualification provision were viewed as
depriving the clergy of a civil right solely because of their
religious beliefs, our inquiry would be at an end. The Free
Exercise Clause categorically prohibits government from regulating,
prohibiting, or rewarding religious beliefs as such.
Id.
at
374 U. S. 402;
Cantwell v. Connecticut, supra at
310 U. S. 304.
In
Torcaso v. Watkins, 367 U. S. 488
(1961), the Court reviewed the Maryland constitutional requirement
that all holders of "any office of profit or trust in this State"
declare their belief in the existence of God. In striking down the
Maryland requirement, the Court did not evaluate the interests
assertedly justifying it, but rather held that it violated freedom
of religious belief.
In our view, however,
Torcaso does not govern. By
its
Page 435 U. S. 627
terms, the Tennessee disqualification operates against McDaniel
because of his
status as a "minister" or "priest." The
meaning of those words is, of course, a question of state law.
[
Footnote 5] And although the
question has not been examined extensively in state law sources,
such authority as is available indicates that ministerial status is
defined in terms of conduct and activity, rather than in terms of
belief. [
Footnote 6] Because
the Tennessee disqualification is directed primarily at status,
acts, and conduct, it is unlike the requirement in
Torcaso, which focused on
belief. Hence, the Free
Exercise Clause's absolute prohibition of infringements on the
"freedom to believe" is inapposite here. [
Footnote 7]
This does not mean, of course, that the disqualification escapes
judicial scrutiny, or that McDaniel's activity does not enjoy
significant First Amendment protection. The Court
Page 435 U. S. 628
recently declared, in
Wisconsin v. Yoder, 406 U.
S. 205,
406 U. S. 215
(1972):
"The essence of all that has been said and written on the
subject is that only those interests of the highest order and those
not otherwise served can overbalance legitimate claims to the free
exercise of religion. [
Footnote
8]"
Tennessee asserts that its interest in preventing the
establishment of a state religion is consistent with the
Establishment Clause, and thus of the highest order. The
constitutional history of the several States reveals that,
generally, the interest in preventing establishment prompted the
adoption of clergy disqualification provisions,
see Stokes
622; Tennessee does not appear to be an exception to this pattern.
Cf. post at
435 U. S. 636
n. 9 (BRENNAN, J., concurring in judgment). There is no occasion to
inquire whether promoting such an interest is a permissible
legislative goal, however,
see post at
435 U. S.
636-642, for Tennessee has failed to demonstrate that
its views of the dangers of clergy participation in the political
process have not lost whatever validity they may once have enjoyed.
The essence of the rationale underlying the Tennessee restriction
on ministers is that, if elected to public office, they will
necessarily exercise
Page 435 U. S. 629
their powers and influence to promote the interests of one sect
or thwart the interests of another, thus pitting one against the
others, contrary to the anti-establishment principle with its
command of neutrality.
See Walz v. Tax Comm'n,
397 U. S. 664
(1970). However widely that view may have been held in the 18th
century by many, including enlightened statesmen of that day, the
American experience provides no persuasive support for the fear
that clergymen in public office will be less careful of
anti-establishment interests or less faithful to their oaths of
civil office than their unordained counterparts. [
Footnote 9]
We hold that § 4 of ch. 848 violates McDaniel's First Amendment
right to the free exercise of his religion made applicable to the
States by the Fourteenth Amendment. Accordingly, the judgment of
the Tennessee Supreme Court is reversed, and the case is remanded
to that court for further proceedings not inconsistent with this
opinion.
Reversed and remanded.
MR JUSTICE BLACKMUN took no part in the consideration or
decision of this case.
[
Footnote 1]
"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."
Tenn.Const., Art. VIII, § 1 (1796).
[
Footnote 2]
The judgment of the Tennessee Supreme Court was stayed until
final disposition of this appeal. McDaniel is currently serving as
a delegate.
[
Footnote 3]
Maryland, Virginia, North Carolina, South Carolina, Georgia, New
York, and Delaware. L. Pfeffer, Church, State, and Freedom 118
(Rev. ed.1967). Three of these -- New York, Delaware, and South
Carolina -- barred clergymen from holding any political office.
Ibid.
[
Footnote 4]
6 Papers of Thomas Jefferson 297 (J. Boyd ed.1952). Jefferson
later concluded that experience demonstrated there was no need to
exclude clergy from elected office. In a letter to Jeremiah Moor in
1800, he stated:
"[I]n the same scheme of a constitution [for Virginia which I
prepared in 1783, I observe] an abridgment of the right of being
elected, which after 17 years more of experience & reflection,
I do not approve. It is the incapacitation of a clergyman from
being elected. The clergy, by getting themselves established by
law, & ingrafted into the machine of government, have been a
very formidable engine against the civil and religious rights of
man. They are still so in many countries & even in some of
these United States. Even in 1783, we doubted the stability of our
recent measures for reducing them to the footing of other useful
callings. It now appears that our means were effectual. The clergy
here seem to have relinquished all pretensions to privilege, and to
stand on a footing with lawyers, physicians, &c. They ought
therefore to possess the same rights."
9 Works of Jefferson 143 (P. Ford ed. 1905).
[
Footnote 5]
In this case, the Tennessee Supreme Court concluded that the
disqualification of McDaniel did not interfere with his religious
belief.
547
S.W.2d 897, 903, 904, 907 (1977). But whether the ministerial
status, as defined by state law, implicates the "freedom to act" or
the absolute "freedom to believe,"
Cantwell v.
Connecticut, 310 U. S. 296,
310 U. S. 304
(1940), must be resolved under the Free Exercise Clause. Thus,
although we consider the Tennessee court's resolution of that
issue, we are not bound by it.
[
Footnote 6]
The Tennessee constitutional provision embodying the
disqualification inferentially defines the ministerial profession
in terms of its "duties," which include the "care of souls."
Tenn.Const., Art. 9, § 1. In this case, the Tennessee Supreme Court
stated that the disqualification reaches those filling a
"leadership role in religion," and those "dedicated to the full
time
promotion of the religious objectives of a particular
religious sect." 547 S.W.2d at 903 (emphasis added). The Tennessee
court, in defining "priest," also referred to the dictionary
definition as "one who
performs sacrificial, ritualistic,
mediatorial, interpretative, or ministerial functions. . . ."
Id. at 908 (quoting Webster's Third New International
Dictionary 1799-1800 (1971)) (emphasis added).
[
Footnote 7]
The absolute protection afforded belief by the First Amendment
suggests that a court should be cautious in expanding the
scope of that protection, since to do so might leave
government powerless to vindicate compelling state interests.
[
Footnote 8]
Thus, the courts have sustained government prohibitions on
handling venomous snakes or drinking poison, even as part of a
religious ceremony,
State ex rel. Swann v.
Pack, 527
S.W.2d 99 (Tenn.1975),
cert. denied, 424 U.S. 954
(1976);
State v. Massey, 229 N.C. 734, 51 S.E.2d 179,
appeal dismissed for want of substantial federal question sub
nom. Bunn v. North Carolina, 336 U.S. 942 (1949), but have
precluded the application of criminal sanctions to the religious
use of peyote,
People v. Woody, 61 Cal. 2d
716, 394 P.2d 813 (1964);
cf. Oliver v. Udall, 113
U.S.App.D.C. 212, 306 F.2d 819 (1962) (not reaching constitutional
issue), or the religiously impelled refusal to comply with
mandatory education laws past the eighth grade,
Wisconsin v.
Yoder. We need not pass on the conclusions reached in
Pack
and Woody, which were not reviewed by this Court. Those cases
are illustrative of the general nature of free exercise protections
and the delicate balancing required by our decisions in
Sherbert v. Verner, 374 U. S. 398
(1963), and
Wisconsin v. Yoder, when an important state
interest is shown.
[
Footnote 9]
The struggle for separation of church and state in Virginia,
which influenced developments in other States -- and in the Federal
Government -- was waged by others in addition to such secular
leaders as Jefferson, Madison, and George Mason; many clergymen
vigorously opposed any established church.
See Stokes
366-379. This suggests the imprecision of any assumption that, even
in the early days of the Republic, most ministers, as legislators,
would support measures antithetical to the separation of church and
state.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins,
concurring in the judgment.
I would hold that § 4 of the legislative call to the Tennessee
constitutional convention, [
Footnote
2/1] to the extent that it incorporates
Page 435 U. S. 630
Art. 9, § 1, of the Tennessee Constitution,
see ante at
435 U. S. 621
n. 1, violates both the Free Exercise and Establishment Clauses of
the First Amendment as applied to the States through the Fourteenth
Amendment. I therefore concur in the reversal of the judgment of
the Tennessee Supreme Court.
I
The Tennessee Supreme Court sustained Tennessee's exclusion on
the ground that it
"does not infringe upon religious belief or religious action
within the protection of the free exercise clause[, and] that such
indirect burden as may be imposed upon ministers and priests by
excluding them from the lawmaking process of government is
justified by the compelling state interest in maintaining the wall
of separation between church and state."
547
S.W.2d 897, 907 (1977). In reaching this conclusion, the state
court relied on two interrelated propositions which are
inconsistent with decisions of this Court. The first is that a
distinction may be made between "religious belief or religious
action," on the one hand, and the "career or calling" of the
ministry, on the other. The court stated that
"[i]t is not religious belief, but the career or calling, by
which one is identified as dedicated to the full time promotion of
the religious objectives of a particular religious sect, that
disqualifies."
Id. at 903. The second is that the disqualification
provision does not interfere with the free exercise of religion,
because the practice of the ministry is left unimpaired; only
candidacy for legislative office is proscribed.
Page 435 U. S. 631
The characterization of the exclusion as one burdening
appellant's "career or calling" and not religious belief cannot
withstand analysis. Clearly, freedom of belief protected by the
Free Exercise Clause embraces freedom to profess or practice that
belief, [
Footnote 2/2] even
including doing so to earn a livelihood. One's religious belief
surely does not cease to enjoy the protection of the First
Amendment when held with such depth of sincerity as to impel one to
join the ministry. [
Footnote
2/3]
Whether or not the provision discriminates among religions (and
I accept, for purposes of discussion, the State Supreme
Page 435 U. S. 632
Court's construction that it does not, [
Footnote 2/4]
id. at 908), it establishes a
religious classification -- involvement in protected religious
activity -- governing the eligibility for office, which I believe
is absolutely prohibited. The provision imposes a unique disability
upon those who exhibit a defined level of intensity of involvement
in protected religious activity. Such a classification as much
imposes a test for office based on religious conviction as one
based on denominational preference. A law which limits political
participation to those who eschew prayer, public worship, or the
ministry as much establishes a religious test as one which
disqualifies Catholics, or Jews, or Protestants.
Wieman v.
Updegraff, 344 U. S. 183,
344 U. S.
191-192 (1952). [
Footnote
2/5] Because the challenged provision establishes as a
condition of office the willingness to eschew certain protected
religious practices,
Torcaso v. Watkins, 367 U.
S. 488 (1961), compels the conclusion hat it violates
the Free Exercise Clause.
Torcaso struck down Maryland's
requirement that an appointee to the office of notary public
declare his belief in the existence of God, expressly
disavowing
"the historically and constitutionally discredited policy of
probing religious beliefs by test oaths or limiting public offices
to persons who have, or perhaps more properly profess to have, a
belief in some particular kind
Page 435 U. S. 633
of religious concept."
Id. at
367 U. S. 494
(footnote omitted). That principle equally condemns the religious
qualification for elective office imposed by Tennessee.
The second proposition -- that the law does not interfere with
free exercise because it does not directly prohibit religious
activity, but merely conditions eligibility for office on its
abandonment -- is also squarely rejected by precedent. In
Sherbert v. Verner, 374 U. S. 398
(1963), a state statute disqualifying from unemployment
compensation benefits persons unwilling to work on Saturdays was
held to violate the Free Exercise Clause as applied to a
Sabbatarian whose religious faith forbade Saturday work. That
decision turned upon the fact that
"[t]he ruling forces her to choose between following the
precepts of her religion and forfeiting benefits, on the one hand,
and abandoning one of the precepts of her religion in order to
accept work, on the other hand. Governmental imposition of such a
choice puts the same kind of burden upon the free exercise of
religion as would a fine imposed against appellant for her Saturday
worship"
Id. at
374 U. S. 404.
[
Footnote 2/6] Similarly, in
"prohibiting legislative service because of a person's leadership
role in a religious faith," 547 S.W.2d at 903, Tennessee's
disqualification provision imposed an unconstitutional penalty upon
appellant's exercise of his religious faith. [
Footnote 2/7]
Page 435 U. S. 634
Nor can Tennessee's political exclusion be distinguished from
Sherbert's welfare disqualification, as the Tennessee
court thought, by suggesting that the unemployment compensation
involved in
Sherbert was necessary to sustain life, while
participation in the constitutional convention is a voluntary
activity not itself compelled by religious belief.
Torcaso
answers that contention. There we held that
"[t]he fact . . . that a person is not compelled to hold public
office cannot possibly be an excuse for barring him from office by
state-imposed criteria forbidden by the Constitution."
367 U.S. at
367 U. S.
495-496.
The opinion of the Tennessee Supreme Court makes clear that the
statute requires appellant's disqualification solely because he is
a minister of a religious faith. If appellant were to renounce his
ministry, presumably he could regain eligibility for elective
office, but if he does not, he must forgo an opportunity for
political participation he otherwise would enjoy.
Sherbert
and
Torcaso compel the conclusion that, because the
challenged provision requires appellant to purchase his right to
engage in the ministry by sacrificing his candidacy, it impairs the
free exercise of his religion.
The plurality recognizes that
Torcaso held
"categorically prohibit[ed]," a provision disqualifying from
political office on the basis of religious belief, but draws what I
respectfully suggest is a sophistic distinction between that
holding and Tennessee's disqualification provision. The purpose of
the Tennessee provision is not to regulate activities associated
with a ministry, such as dangerous snake handling or human
sacrifice, which the State validly could prohibit, but to bar from
political office persons regarded as deeply committed to religious
participation because of that participation -- participation itself
not regarded as harmful by the State, and which therefore must be
conceded to be protected. As the plurality recognizes, appellant
was disqualified because he
"fill[ed] a 'leadership role in religion,' and . . .
'dedicated
Page 435 U. S. 635
[himself] to the full-time
promotion of the religious
objectives of a particular religious sect.' 547 S.W.2d at 903
(emphasis added),"
ante at
435 U. S. 627
n. 6. According to the plurality, McDaniel could not be, and was
not, in fact, barred for his belief in religion, but was barred
because of his commitment to persuade or lead others to accept that
belief. I simply cannot fathom why the Free Exercise Clause
"categorically prohibits" hinging qualification for office on the
at of declaring a belief in religion, but not on the
act
of discussing that belief with others. [
Footnote 2/8]
Ante at
435 U. S.
626.
Page 435 U. S. 636
II
The State Supreme Court's justification of the prohibition,
echoed here by the State, as intended to prevent those most
intensely involved in religion from injecting sectarian goals and
policies into the lawmaking process, and thus to avoid fomenting
religious strife or the fusing of church with state affairs, itself
raises the question whether the exclusion violates the
Establishment Clause. [
Footnote
2/9] As construed, the exclusion manifests patent hostility
toward, not neutrality respecting, religion; forces or influences a
minister or priest to abandon his ministry as the price of public
office; and, in sum, has a primary effect which inhibits religion.
See Everson v. Board of Education, 330 U. S.
1,
330 U. S. 15-16
(1947);
Illinois ex rel. McCollum v. Board of Education,
333 U. S. 203,
333 U. S. 210
(1948);
Torcaso v. Watkins, 367 U.S. at
367 U. S.
492-494;
Lemon v. Kurtzman, 403 U.
S. 602 (1971);
Meek v. Pittenger, 421 U.
S. 349,
421 U. S. 358
(1975).
Page 435 U. S. 637
The fact that responsible statesmen of the day, including some
of the United States Constitution's Framers, were attracted by the
concept of clergy disqualification,
see ante at
435 U. S.
622-625, does not provide historical support for
concluding that those provisions are harmonious with the
Establishment Clause. Notwithstanding the presence of such
provisions in seven state constitutions when the Constitution was
being written, [
Footnote 2/10]
the Framers refused to follow suit. That the disqualification
provisions contained in state constitutions contemporaneous with
the United States Constitution and the Bill of Rights cannot
furnish a guide concerning the understanding of the harmony of such
provisions with the Establishment Clause is evident from the
presence in state constitutions, side by side with disqualification
clauses, of provisions which would have clearly contravened the
First Amendment had it applied to the States, such as those
creating an official church, [
Footnote 2/11] and limiting political office to
Protestants [
Footnote 2/12] or
theistic believers generally. [
Footnote 2/13] In short, the regime of religious
liberty embodied in state constitutions was very different from
that established by the Constitution of the United States. When,
with the adoption of the Fourteenth Amendment, the strictures of
the First Amendment became wholly applicable to the States,
see
Cantwell v. Connecticut, 310 U. S. 296,
310 U. S. 303
(1940);
Everson v. Board of Education, supra at
330 U. S. 8,
earlier conceptions of permissible state action with respect to
religion -- including those regarding clergy disqualification --
were superseded.
Our decisions interpreting the Establishment Clause have aimed
at maintaining erect the wall between church and state.
Page 435 U. S. 638
State governments, like the Federal Government, have been
required to refrain from favoring the tenets or adherents of any
religion or of religion over nonreligion, [
Footnote 2/14] from insinuating themselves in
ecclesiastical affairs or disputes, [
Footnote 2/15] and from establishing programs which
unnecessarily or excessively entangle government with religion.
[
Footnote 2/16] On the other
hand, the Court's decisions have indicated that the limits of
permissible governmental action with respect to religion under the
Establishment Clause must reflect an appropriate accommodation of
our heritage as a religious people whose freedom to develop and
preach religious ideas and practices is protected by the Free
Exercise Clause. [
Footnote 2/17]
Thus, we have rejected as unfaithful to our constitutionally
protected tradition of religious liberty any conception of the
Religion Clauses as stating a "strict no-aid" theory [
Footnote 2/18] or as stating a unitary
principle that
"religion may not be used as a basis for classification for
purposes of governmental action, whether that action be the
conferring of rights or privileges or the imposition of duties or
obligations. "
Page 435 U. S. 639
P. Kurland, Religion and the Law 18 (1962);
accord, id.
at 112. Such rigid conceptions of neutrality have been tempered by
constructions upholding religious classifications where necessary
to avoid
"[a] manifestation of . . . hostility [toward religion] at war
with our national tradition as embodied in the First Amendment's
guaranty of the free exercise of religion."
Illinois ex rel. McCollum v. Board of Education, supra
at
333 U. S.
211-212. This understanding of the interrelationship of
the Religion Clauses has permitted government to take religion into
account when necessary to further secular purposes unrelated to the
advancement of religion, [
Footnote
2/19] and to exempt, when possible, from generally applicable
governmental regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, [
Footnote 2/20] or to create without state
involvement an atmosphere in which voluntary religious exercise may
flourish. [
Footnote 2/21]
Beyond these limited situations in which government may take
cognizance of religion for purposes of accommodating our traditions
of religious liberty, government may not use religion as a basis of
classification for the imposition of duties, penalties, privileges
or benefits. [
Footnote 2/22]
"State power is no more to be used so as to handicap religions than
it is to favor them."
Everson v. Board of Education, 330
U.S. at
330 U. S. 18.
Tennessee nevertheless invokes the Establishment Clause to
excuse the imposition of a civil disability upon those deemed
Page 435 U. S. 640
to be deeply involved in religion. In my view, that Clause will
not permit, much less excuse or condone, the deprivation of
religious liberty here involved.
Fundamental to the conception of religious liberty protected by
the Religion Clauses is the idea that religious beliefs are a
matter of voluntary choice by individuals and their associations,
[
Footnote 2/23] and that each
sect is entitled to "flourish according to the zeal of its
adherents and the appeal of its dogma."
Zorach v. Clauson,
343 U. S. 306,
343 U. S. 313
(1952). Accordingly, religious ideas, no less than any other, may
be the subject of debate which is "uninhibited, robust, and
wide-open. . . ."
New York Times Co. v. Sullivan,
376 U. S. 254,
376 U. S. 270
(1964). Government may not interfere with efforts to proselyte or
worship in public places.
Kunz v. New York, 340 U.
S. 290 (1951). It may not tax the dissemination of
religious ideas.
Murdock v. Pennsylvania, 319 U.
S. 105 (1943). It may not seek to shield its citizens
from those who would solicit them with their religious beliefs.
Martin v. City of Struthers, 319 U.
S. 141 (1943).
That public debate of religious ideas, like any other, may
arouse emotion, may incite, may foment religious divisiveness and
strife, does not rob it of constitutional protection. [
Footnote 2/24]
Cantwell v.
Connecticut, 310 U.S. at
310 U. S.
309-310;
cf. Terminiello v. Chicago,
337 U. S. 1,
337 U. S. 4-5
(1949). The mere fact that a purpose of the Establishment Clause is
to reduce or eliminate religious divisiveness or strife does not
place religious discussion, association, or political participation
in a status less preferred than rights of discussion, association,
and political participation generally.
"Adherents of particular faiths and individual churches
frequently take strong positions on public
Page 435 U. S. 641
issues including . . . vigorous advocacy of legal or
constitutional positions. Of course, churches, as much as secular
bodies and private citizens, have that right."
Walz v. Tax Comm'n, 397 U. S. 664,
397 U. S. 670
(1970).
The State's goal of preventing sectarian bickering and strife
may not be accomplished by regulating religious speech and
political association. The Establishment Clause does not license
government to treat religion and those who teach or practice it,
simply by virtue of their status as such, as subversive of American
ideals, and therefore subject to unique disabilities.
Cf.
Wieman v. Updegraff, 344 U. S. 183
(1952). Government may not inquire into the religious beliefs and
motivations of officeholders -- it may not remove them from office
merely for making public statements regarding religion, or question
whether their legislative actions stem from religious conviction.
Cf. Bond v. Floyd, 385 U. S. 116
(1966).
In short, government may not, as a goal, promote "safe thinking"
with respect to religion, and fence out from political
participation those, such as ministers, whom it regards as
overinvolved in religion. Religionists, no less than members of any
other group, enjoy the full measure of protection afforded speech,
association, and political activity generally. The Establishment
Clause, properly understood, is a shield against any attempt by
government to inhibit religion as it has done here;
Abington
School Dist, v. Schempp, 374 U. S. 203,
374 U. S. 222
(1963). It may not be used as a sword to justify repression of
religion or its adherents from any aspect of public life. [
Footnote 2/25]
Page 435 U. S. 642
Our decisions under the Establishment Clause prevent government
from supporting or involving itself in religion, or from becoming
drawn into ecclesiastical disputes. [
Footnote 2/26] These prohibitions naturally tend, as
they were designed to, to avoid channeling political activity along
religious lines, and to reduce any tendency toward religious
divisiveness in society. Beyond enforcing these prohibitions,
however, government may not go. The antidote which the Constitution
provides against zealots who would inject sectarianism into the
political process is to subject their ideas to refutation in the
marketplace of ideas, and their platforms to rejection at the
polls. With these safeguards, it is unlikely that they will succeed
in inducing government to act along religiously divisive lines,
and, with judicial enforcement of the Establishment Clause, any
measure of success they achieve must be short-lived, at best.
[
Footnote 2/1]
Section 4, ch. 848, 1976 Tenn. Pub. Acts, provides,
inter
alia:
"Any citizen of the state who can qualify for membership in the
House of Representatives of the General Assembly may become a
candidate for delegate to the convention upon filing with the
County Election Commission of his county a nominating petition
containing not less than twenty-five (25) names of legally
qualified voters of, his or her representative district. Each
district must be represented by a qualified voter of that district.
In the case of a candidate from a representative district
comprising more than one county, only one qualifying petition need
be filed by the candidate, and that in his home county, with a
certified copy thereof filed with the Election Commission of the
other counties of his representative district."
[
Footnote 2/2]
That, for purposes of defining the protection afforded by the
Free Exercise Clause, a sharp distinction cannot be made between
religious belief and religiously motivated action is demonstrated
by Oliver Cromwell's directive regarding religious liberty to the
Catholics in Ireland:
"'As to freedom of conscience, I meddle with no man's
conscience; but if you mean by that, liberty to celebrate the Mass,
I would have you understand that in no place where the power of the
Parliament of England prevails shall that be permitted.'"
Quoted in S. Hook, Paradoxes of Freedom 23 (1962).
See
P. Kurland, Religion and the Law 22 (1962).
This does not mean that the right to participate in religious
exercises is absolute, or that the State may never prohibit or
regulate religious practices. We have recognized that,
"'even when the action is in accord with one's religious
convictions, [it] is not totally free from legislative
restrictions.' . . . The conduct or actions so regulated[,
however,] have invariably posed some substantial threat to public
safety, peace or order."
Sherbert v. Verner, 374 U. S. 398,
374 U. S. 403
(1963) (citations omitted), in part quoting
Braunfeld v.
Brown, 366 U. S. 599,
366 U. S. 603
(1961). But the State does not suggest that the "career or calling"
of minister or priest itself poses "some substantial threat to
public safety, peace or order"; it is the political participation
of those impelled by religious belief to engage in the ministry
which the State wishes to proscribe.
[
Footnote 2/3]
The preaching and proselyting activities in which appellant is
engaged as a minister, of course, constitute religious activity
protected by the Free Exercise Clause.
Kunz v. New York,
340 U. S. 290
(1951) (public worship);
Murdock v. Pennsylvania,
319 U. S. 105
(1943) (distribution of religious literature).
[
Footnote 2/4]
It is arguable that the provision not only discriminates between
religion and nonreligion, but may, as well, discriminate among
religions by depriving ministers of faiths with established,
clearly recognizable ministries from holding elective office, while
permitting the members of nonorthodox humanistic faiths having no
"counterpart" to ministers,
547
S.W.2d 897, 908 (1977), similarly engaged to do so. Madison
warned that disqualification provisions would have precisely such
an effect:
"[D]oes it not, in fine, violate impartiality by shutting the
door [against] the Ministers of one Religion and leaving it open
for those of every other."
5 Writings of James Madison 288 (G. Hunt ed.1904).
[
Footnote 2/5]
". . . Congress could not 'enact a regulation providing that no
Republican, Jew or Negro shall be appointed to federal office, or
that no federal employee shall attend Mass or take any active part
in missionary work.'"
344 U.S. at
344 U. S.
191-192, quoting
United Public Workers v.
Mitchell, 330 U. S. 75,
330 U. S. 100
(1947).
[
Footnote 2/6]
Sherbert did not state a new principle in this regard.
See 374 U.S. at
374 U. S.
404-405, n. 6 (collecting authorities); Van Alstyne, The
Demise of the Right-Privilege Distinction in Constitutional Law, 81
Harv.L.Rev. 1439 (1968).
The Tennessee Supreme Court relied on
Braunfeld v. Brown,
supra at
366 U. S.
603-606. Candor compels the acknowledgment that, to the
extent that
Braunfeld conflicts with
Sherbert in
this regard, it was overruled.
[
Footnote 2/7]
The
"language of the [first] amendment commands that New Jersey
cannot hamper its citizens in the free exercise of their own
religion. Consequently, it cannot exclude individual Catholics,
Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers,
Presbyterians, or the members of any other faith,
because of
their faith, or lack of it, from receiving the benefits of
public welfare legislation."
Everson v. Board of Education, 330 U. S.
1,
330 U. S. 16
(1947) (emphasis in original).
[
Footnote 2/8]
The plurality's reliance on
Wisconsin v. Yoder,
406 U. S. 205
(1972), is misplaced. The governmental action interfering with the
free exercise of religion here differs significantly from that in
Yoder. There Amish parents challenged a state statute
requiring all children within the State to attend school until the
age of 16. The parents' claim was that this compulsion interfered
with Amish religious teachings requiring the deemphasis of
intellectual training and avoidance of materialistic goals. In
sustaining the parents' claim under the Free Exercise Clause, the
Court found it necessary to balance the importance of the secular
values advanced by the statute, the closeness of the fit between
those ends and the means chosen, and the impact an exemption on
religious grounds would have on the State's goals, on the one hand,
against the sincerity and centrality of the objection to the
State's goals to the sect's religious practice, and the extent to
which the governmental regulation interfered with that practice, on
the other hand. In
Yoder, the statute implemented by
religiously neutral means an avowedly secular purpose which
nevertheless burdened respondent's religious exercise. Cases of
that nature require a sensitive and difficult accommodation of the
competing interests involved.
By contrast, the determination of the validity of the statute
involved here requires no balancing of interests. Since, "[b]y its
terms, the Tennessee disqualification operates against McDaniel
because of his
status as a
minister' or 'priest,'"
ante at 435 U. S.
626-627 (emphasis in original), it runs afoul of the
Free Exercise Clause simply as establishing a religious
classification as a basis for qualification for a political office.
Nevertheless, although my view -- that, because the prohibition
establishes a religious qualification for political office it is
void without more does not require consideration of any compelling
state interest, I agree with the plurality that the State did not
establish a compelling interest.
[
Footnote 2/9]
Appellant has raised doubt that the purpose ascribed to the
provision by the State is, in fact, its actual purpose. He argues
that the actual purpose was to enact as law the religious belief of
the dominant Presbyterian sect that it is sinful for a minister to
become involved in worldly affairs such as politics, Brief for
Appellant 58-59, and that the statute therefore violates the
Establishment Clause. Although the State's ascribed purpose is
conceivable, especially in light of the reasons for
disqualification advanced by statesmen at the time the provision
was adopted,
see ante at
435 U. S.
622-625, if it were necessary to address appellant's
contention, we would determine whether that purpose was, in fact,
what the provision's framers sought to achieve. In contrast to the
general rule that legislative motive or purpose is not a relevant
inquiry in determining the constitutionality of a statute,
see
Arizona v. California, 283 U. S. 423,
283 U. S. 455
(1931) (collecting cases), our cases under the Religion Clauses
have uniformly held such an inquiry necessary because, under the
Religion Clauses, government is generally prohibited from seeking
to advance or inhibit religion.
Epperson v. Arkansas,
393 U. S. 97,
393 U. S. 109
(1968);
McGowan v. Maryland, 366 U.
S. 420,
366 U. S.
431-445, 453 (1961);
cf. Grosjean v. American Press
Co., 297 U. S. 233,
297 U. S.
250-251 (1936). In view of the disposition of this case,
it is unnecessary to explore the validity of appellant's
contention, however.
[
Footnote 2/10]
See L. Pfeffer, Church, State and Freedom 118 (Rev.
ed.1967); 1 A. Stokes, Church and State in the United States 622
(1950).
[
Footnote 2/11]
S.C.Const., Art. XXXVIII (1778);
see generally Md.
Declaration of Rights, Art. XXXIII (1776) (authorizing taxation for
support of Christian religion).
[
Footnote 2/12]
N.C.Const. § XXXII (1776).
[
Footnote 2/13]
Tenn.Const., Art. VIII, § 2 (1796). The current Tennessee
Constitution continues this disqualification. Tenn.Const., Art. 9,
§ 2 (1870).
[
Footnote 2/14]
Epperson v. Arkansas, supra; Abington School Dist. v.
Schempp, 374 U. S. 203
(1963);
Engel v. Vitale, 370 U. S. 421
(1962);
Illinois ex rel. McCollum v. Board of Education,
333 U. S. 203
(1948).
[
Footnote 2/15]
Serbian Orthodox Diocese v. Milivojevich, 426 U.
S. 696 (1976);
Presbyterian Church v. Hull
Presbyterian Church, 393 U. S. 440
(1969);
Kedroff v. Saint Nicholas Cathedral, 344 U. S.
94 (1952);
United States v. Ballard,
322 U. S. 78,
322 U. S. 86
(1944);
See Watson v.
Jones, 13 Wall. 679,
80 U. S. 727
(1872).
[
Footnote 2/16]
New York v. Cathedral Academy, 434 U.
S. 125 (1977);
Meek v. Pittenger, 421 U.
S. 349 (1975);
Levitt v. Committee for Public
Education, 413 U. S. 472
(1973);
Committee for Public Education v. Nyquist,
413 U. S. 756
(1973);
Lemon v. Kurtzman, 411 U.
S. 192 (1973) (
Lemon II);
Lemon v.
Kurtzman, 403 U. S. 602
(1971) (
Lemon I).
[
Footnote 2/17]
E.g., Abington School Dist. v. Schempp, 374 U.S. at
374 U. S.
212-214;
id. at
374 U. S. 295
(BRENNAN, J., concurring);
id. at
374 U. S. 306
(Goldberg, J., concurring);
id. at
374 U. S.
311-318 (STEWART, J., dissenting);
Everson v. Board
of Education, 330 U.S. at
330 U. S. 8.
[
Footnote 2/18]
Giannella, Religious Liberty, Nonestablishment, and Doctrinal
Development, Part II, 81 Harv.L.Rev. 513, 514 (1968).
[
Footnote 2/19]
See, e.g., Everson v. Board of Education, supra; McGowan v.
Maryland, supra; Giannella,
supra, 435
U.S. 618fn2/18|>n. 18, at 527-528, 532, 538-560 (discussion
of "secularly relevant religious factor").
[
Footnote 2/20]
Wisconsin v. Yoder, 406 U. S. 205
(1972);
Sherbert v. Verner, 374 U.S. at
374 U. S. 409;
id. at
374 U. S.
414-417 (STEWART, J., concurring in result); L. Tribe,
American Constitutional Law § 14-4 (1978); Katz, Freedom of
Religion and State Neutrality, 20 U.Chi.L.Rev. 426 (1953).
[
Footnote 2/21]
Zorach v. Clauson, 343 U. S. 306,
343 U. S. 313
(1952);
Quick Bear v. Leupp, 210 U. S.
50 (1908).
See generally Walz v. Tax Comm'n,
397 U. S. 664
(1970).
[
Footnote 2/22]
Accord, Giannella,
supra, 435
U.S. 618fn2/18|>n. 18, at 527.
[
Footnote 2/23]
Id. at 516-522.
[
Footnote 2/24]
"Every idea is an incitement. It offers itself for belief, and,
if believed, it is acted on unless some other belief outweighs it
or some failure of energy stifles the movement at its birth."
Gitlow v. New York, 268 U. S. 652,
268 U. S. 673
(1925) (Holmes, J., dissenting).
[
Footnote 2/25]
"In much the same spirit, American courts have not thought the
separation of church and state to require that religion be totally
oblivious to government or politics; church and religious groups in
the United States have long exerted powerful political pressures on
state and national legislatures, on subjects as diverse as slavery,
war, gambling, drinking, prostitution, marriage, and education. To
view such religious activity as suspect, or to regard its political
results as automatically tainted, might be inconsistent with first
amendment freedoms of religious and political expression -- and
might not even succeed in keeping religious controversy out of
public life, given the 'political ruptures caused by the alienation
of segments of the religious community.'"
L. Tribe,
supra, 435
U.S. 618fn2/20|>n. 20, § 112, pp. 866-867 (footnotes
omitted).
[
Footnote 2/26]
See authorities cited nn.
435
U.S. 618fn2/14|>14-16,
supra.
MR. JUSTICE STEWART, concurring in the judgment.
Like MR. JUSTICE BRENNAN, I believe that
Torcaso v.
Watkins, 367 U. S. 488,
controls this case. There, the Court held that Maryland's refusal
to commission Torcaso as a notary public because he would not
declare his belief in God violated the First Amendment, as
incorporated by the Fourteenth. The offense against the First and
Fourteenth Amendments lay not simply in requiring an oath, but in
"limiting public offices to persons who have, or perhaps, more
properly, profess to have, a belief in some particular kind of
religious concept."
Id. at
367 U. S. 494.
As the Court noted:
"The fact . . . that a person is not compelled to hold public
office cannot possibly be
Page 435 U. S. 643
an excuse for barring him from office by state-imposed criteria
forbidden by the Constitution."
Id. at
367 U. S.
495-496. Except for the fact that Tennessee bases its
disqualification not on a person's statement of belief, but on his
decision to pursue a religious vocation as directed by his belief,
that case is indistinguishable from this one -- and that sole
distinction is without constitutional consequence.
*
* In
Cantwell v. Connecticut, 310 U.
S. 296,
310 U. S.
303-304, this Court recognized that
"the [First] Amendment embraces two concepts, -- freedom to
believe and freedom to act. The first is absolute, but, in the
nature of things, the second cannot be."
This distinction reflects the judgment that, on the one hand,
government has no business prying into people's minds or dispensing
benefits according to people's religious beliefs, and, on the
other, that acts harmful to society should not be immune from
proscription simply because the actor claims to be religiously
inspired. The disability imposed on McDaniel, like the one imposed
on
Torcaso, implicates the "freedom to believe" more than
the less absolute "freedom to act." As did Maryland in
Torcaso, Tennessee here has penalized an individual for
his religious status -- for what he is and believes in -- rather
than for any particular act generally deemed harmful to
society.
MR. JUSTICE WHITE, concurring in the judgment.
While I share the view of my Brothers that Tennessee's
disqualification of ministers from serving as delegates to the
State's constitutional convention is constitutionally
impermissible, I disagree as to the basis for this invalidity.
Rather than relying on the Free Exercise Clause, as do the other
Members of the Court, I would hold ch. 848, § 4, of 1976
Tenn.Pub.Acts unconstitutional under the Equal Protection Clause of
the Fourteenth Amendment.
The plurality states that § 4 "has encroached upon McDaniel's
right to the free exercise of religion,"
ante at
435 U. S. 626,
but fails to explain in what way McDaniel has been deterred in the
observance of his religious beliefs. Certainly he has not felt
compelled to abandon the ministry as a result of the challenged
statute, nor has he been required to disavow any of his
Page 435 U. S. 644
religious beliefs. Because I am not persuaded that the Tennessee
statute in any way interferes with McDaniel's ability to exercise
his religion as he desires, I would not rest the decision on the
Free Exercise Clause, but instead would turn to McDaniel's argument
that the statute denies him equal protection of the laws.
Our cases have recognized the importance of the right of an
individual to seek elective office, and accordingly have afforded
careful scrutiny to state regulations burdening that right. In
Lubin v. Panish, 415 U. S. 709,
415 U. S. 716
(1974), for example, we noted:
"This legitimate state interest, however, must be achieved by a
means that does not unfairly or unnecessarily burden either a
minority party's or an individual candidate's equally important
interest in the continued availability of political opportunity.
The interests involved are not merely those of parties or
individual candidates; the voters can assert their preferences only
through candidates or parties, or both, and it is this broad
interest that must be weighed in the balance. The right of a party
or an individual to a place on a ballot is entitled to protection
and is intertwined with the rights of voters."
Recognizing that "the rights of voters and the rights of
candidates do not lend themselves to neat separation . . . ,"
Bullock v. Carter, 405 U. S. 134,
405 U. S. 143
(1972), the Court has required States to provide substantial
justification for any requirement that prevents a class of citizens
from gaining ballot access, and has held unconstitutional state
laws requiring the payment of prohibitively large filing fees,
[
Footnote 3/1] requiring the
payment of even moderate fees by indigent candidates, [
Footnote 3/2] and
Page 435 U. S. 645
having the effect of excluding independent and minority party
candidates from the ballot. [
Footnote
3/3]
The restriction in this case, unlike the ones challenged in the
previous cases, is absolute on its face: there is no way in which a
Tennessee minister can qualify as a candidate for the State's
constitutional convention. The State's asserted interest in this
absolute disqualification is its desire to maintain the required
separation between church and state. While the State recognizes
that not all ministers would necessarily allow their religious
commitments to interfere with their duties to the State and to
their constituents, it asserts that the potential for such conflict
is sufficiently great to justify § 4's candidacy
disqualification.
Although the State's interest is a legitimate one, close
scrutiny reveals that the challenged law is not "reasonably
necessary to the accomplishment of . . ." that objective.
Bullock, supra at
405 U. S. 144. All 50 States are required by the First
and Fourteenth Amendments to maintain a separation between church
and state, and yet all of the States other than Tennessee are able
to achieve this objective without burdening ministers' rights to
candidacy. This suggests that the underlying assumption on which
the Tennessee statute is based -- that a minister's duty to the
superiors of his church will interfere with his governmental
service -- is unfounded. Moreover, the rationale of the Tennessee
statute is undermined by the fact that it is both underinclusive
and overinclusive. While the State asserts an interest in keeping
religious and governmental interests separate, the disqualification
of ministers applies only to legislative positions, and not to
executive and judicial offices. On the other hand, the statute's
sweep is also overly broad, for it applies with equal force to
those ministers whose religious beliefs would not prevent them from
properly discharging their duties as constitutional convention
delegates.
Page 435 U. S. 646
The facts of this case show that the voters of McDaniel's
district desired to have him represent them at the limited
constitutional convention. Because I conclude that the State's
Justification for frustrating the desires of these voters and for
depriving McDaniel and all other ministers of the right to seek
this position is insufficient, I would hold § 4 unconstitutional as
a violation of the Equal Protection Clause.
[
Footnote 3/1]
Bullock v. Carter, 405 U. S. 134
(1972).
[
Footnote 3/2]
Lubin v Panish, 415 U. S. 709
(1974).
[
Footnote 3/3]
Williams v. Rhodes, 393 U. S. 23
(1968).