Lead Opinion
аnnounced 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. .v
In its first Constitution, in 1796, Tennessee disqualified ministers from serving as legislators.
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 thе 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 . . . .”
We noted probable jurisdiction.
II
A
The disqualification of ministers from legislative office was a practice carried from England by seven of the original States;
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.
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.
“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 uncleanness, he shall then be fully restored to all the privileges of a free*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 grаdually 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,
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.
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 402; Cantwell v. Connecticut, supra, at 304. In Torcaso v. Watkins,
In our view, however, Torcaso does not govern. By its
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
“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.”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 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 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
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.
Notes
“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).
The judgment of the Tennessee Supreme Court was stayed until final disposition of this appeal. McDaniel is currently serving as a delegate.
Maryland, Virginia, North Carolina, South Carolina, Georgia, New York, and Delaware. L. Pfeifer, 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.
6 Papers of Thomas Jefferson 297 (J. Boyd ed. 1962). 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 оn a footing with
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,
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.”
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.
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,
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,
The strugglе 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.
Concurrence Opinion
with whom Mr. Justice Marshall joins, concurring in the judgment.
I would hold that § 4 of the legislative call to the Tennessee constitutional convention,
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.”
Whether or not the provision discriminates among religions (and I accept for purposes of discussion the State Supreme
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,
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 prohibited],” 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
Thе 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.
Our decisions interpreting the Estаblishment Clause have aimed at maintaining erect the wall between church and state.
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.
Tennessee nevertheless invokes the Establishment Clause to excuse the imposition of a civil disability upon those deemed
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,
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.
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,
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 rеgards 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,
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*630 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.”
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,
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,
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 non-orthodox humanistic faiths having no “counterpart” to ministers,
“[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).
“. . . 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.’ ”
SHerbert did not state a new principle in this regard. See
The Tennessee Supreme Court relied on Braunfeld v. Brown, supra, at 603-606. Candor compels the acknowledgment that to the extent that Braunfeld conflicts with Sherbert in this regard, it was overruled.
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,
The plurality’s reliance on Wisconsin v. Yoder,
By contrast, the determination of the validity of the statute involved here requires no balancing of interests. Since, “[b]jy its terms, the Tennessee disqualification operates against McDaniel because of his status as a ‘minister’ or ‘priest,’” ante, at 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.
Appellant has raised doubt that the purpose ascribed to the provision by the State is, in fact, its actual рurpose. 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 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,
See L. Pfeffer, Church, State and Freedom 118 (Rev. ed. 1967); 1 A. Stokes, Church and State in the United States 622 (1950).
S. C. Const., Art. XXXVIII (1778); see generally Md. Declaration of Rights, Art. XXXIII (1776) (authorizing taxation for support of Christian religion).
N. C. Const. § XXXII (1776).
Tenn. Const., Art. VIII, § 2 (1796). The current Tennessee Constitution continues this disqualification. Tenn. Const., Art. 9, § 2 (1870).
Epperson v. Arkansas, supra; Abington School Dist. v. Schempp,
Serbian Orthodox Diocese v. Milivojevich,
New York v. Cathedral Academy,
E. g., Abington School Dist. v. Schempp,
Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, Part II, 81 Harv. L. Rev. 513, 514 (1968).
See, e. g., Everson v. Board of Education, supra; McGowan v. Maryland, supra; Giannella, supra n. 18, at 527-528, 532, 538-560 (discussion of “secularly relevant religious factor”).
Wisconsin v. Yoder,
Zorach v. Clauson,
Accord, Giannella, supra n. 18, at 527.
Id., at 516-522.
“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,
“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 incon
See authorities cited nn. 14-16, supra.
Concurrence Opinion
concurring in the judgment.
Like Mr. Justice Brennan, I believe that Torcaso v. Watkins,
In Cantwell v. Connecticut,
Concurrence Opinion
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 626, but fails to explain in what way McDaniel has been deterrеd 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
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,
“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 thosе 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, 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,
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 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 сhurch 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.
Bullock v. Carter,
Lubin v. Panish,
Williams v. Rhodes,