Torcaso v. Watkins

PETITIONER: Roy R. Torcaso
RESPONDENT: Clayton K. Watkins, Clerk of the Circuit Court for Montgomery County, Maryland
LOCATION: Circuit Court of Montgomery County

DECIDED BY: Warren Court (1958-1962)

CITATION: 367 US 488 (1961)
ARGUED: Apr 24, 1961
DECIDED: Jun 19, 1961
GRANTED: Nov 07, 1960

Joseph S. Kaufman - for the appellee
Leo Pfeffer - for the appellant
Lawrence Speiser - for the appellant
Thomas B. Finan - for the appellee

Facts of the case

Roy R. Torcaso was appointed to the office of Notary Public by the Governor of Maryland, but he could not receive his commission to serve because he would not declare his belief in God as the Maryland Constitution required. He sued for his commission in the Maryland Circuit Court on the grounds that the requirement violated his First and Fourteenth Amendment rights. The circuit court rejected his claims and the Court of Appeals of the State of Maryland affirmed.


Does a state requirement that a candidate for public office profess a belief in God in order to be eligible violate the First Amendment protection of the freedom of religion?

Media for Torcaso v. Watkins

Audio Transcription for Oral Argument - April 24, 1961 (Part 1) in Torcaso v. Watkins

Audio Transcription for Oral Argument - April 24, 1961 (Part 2) in Torcaso v. Watkins

Leo Pfeffer:

Thank you, Mr. Chief Justice.

I should like to return for quite a moment to Mr. Justice Stewart's question regarding the inclusion of non-theistic belief in the scope of the term "religion".

I think this case illustrates very well the growing -- the expanding interpretation of the term "religion".

Originally, the State of Maryland required that all its public officers --

William J. Brennan, Jr.:


Leo Pfeffer:

Yes, sir.

William J. Brennan, Jr.:


Leo Pfeffer:

It includes -- it includes -- yes, that's part of my argument.

It includes certainly non-theism.

At the present time, I'm asserting that it includes non-theism.

I will shortly assert that it includes atheism as well, but as of now, I am asserting that it includes non-theism which is not necessarily atheism.

Now, originally, the Maryland law required the declaration of belief in the Christian religion.

This was -- their initial form in 1776.

In the middle of 19th century, about 1850, as a result of a good deal of agitation that passed, it was known as the Jewish law, which permitted a person who was of the Jewish faith to take the oath even though he did not believe in the Christian religion.

He will stand that he should -- if he is a Jew, the law said, “He can't profess a belief in the future state of rewards and punishments.”

William J. Brennan, Jr.:

A what?

Leo Pfeffer:

A -- a belief in the future state of rewards and -- and punishments.

If he professes to be a Jew, that was the exact language, but if he professes to be a Jew, he may declare a belief in the future state of rewards and punishments.

These brought in all Christians presumably and all Jews or at least, those Jews who professed their belief in the future state of rewards and punishments.

It excluded Moslems or others who were neither Christians nor Jews, then came the present law which requires simply a belief in the existence of the -- of a God.

So that the term "religion" has been expanded originally on Christian to Jew, to perhaps Moslem or -- or -- and now, I am suggesting to the -- Your Honor that within the Constitution, it must include all those who are of a religion whether or not, that religion encompasses or requires a belief in the existence of God.

I suggest too that within the meaning of the First Amendment, it was -- as it interpreted by this Court as barring preferential aid to religion, barring from public office of others who are not within the religious groups constitutes preferential aid.

Various cases of this Court have interpreted preferential aid to encompass, for example, permission to use public parks which are barred to other religions, like Fowler against Rhode Island or the permission to use public -- schools for religious teachings or perhaps tax benefits.

Certainly, I think that a statutory requirement excluding from public office, all those except in the preferred groups, constitutes preferential aid to religion within the compass and meaning of the First Amendment's No Establishment Clause.

I should like to go further --

Potter Stewart:

You talk in terms of groups, how about an individual who wasn't associated with any organized group at all?

Leo Pfeffer:

I wouldn't -- I would contend that the -- this would apply equally to individuals.

Potter Stewart:

How about an individual atheist, you said, “I -- I affirmatively disbelieve in any religion or in any Supreme -- Supreme Being?”

Leo Pfeffer:

That's exactly what my second --

Potter Stewart:

“I'm associated with nobody else.