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Under Article 6 of the Constitution, no religious test can be required for any "office or public trust."

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

My question is: which government jobs count as "office[s] or public trust[s]" for the sake of this clause? The preceding text seems to imply that those offices are included. But what about other government representatives and employees?

In particular, I was wondering about the applicability of this clause given the exclusion of those who refuse to swear "So help me God" from the Air Force. Setting aside the question of whether or not that qualifies as a "religious test," would members of the Armed Forces even be protected?

  • This is a good question, but I'm having difficulty finding an answer. Wikipedia states that it applies to any federal employee, but fails to provide a citation. Part of the problem is that the First and Fourteenth amendments kind of render this clause obsolete. The last time the Supreme Court heard a case in which a person was subject to a religious test to hold public office, they held the test unconstitutional on 1st and 14th amendment grounds, and didn't bother ruling on article VI. – Avi Sep 9 '14 at 0:59
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    Members of armed forces don't hold public office per se (though courts may disagree). They are employees of the armed forces. SecDef would be included however. – user4012 Sep 9 '14 at 2:18
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Legal scholarship is usually based on court decisions. Unfortunately, as Prof. Bradley at Notre Dame Law notes, no judicial decision has ever been based on Article 6.

So we can only speculate. To answer your stated question directly, The Department of Justice equates "public trust" with any federal employee:

You may have heard it said that “public service is a public trust.” This means that each Federal employee has a responsibility to the United States Government and its citizens to place loyalty to the Constitution, laws, and ethical principles above private gain.

To answer the real question behind your question, this doesn't look like a violation of Article 6. The text of the law which includes that oath provides a way out. It says, "swear, (or affirm)". Affirmations are the legal equivalent of oaths, but don't require the participant to agree to any religious implications.

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    This is basically what I could find as well. It might be worth noting that the 14th and 1st amendments prohibit discrimination on the basis of religion for any government job, thus rendering the religious test clause redundant. – Avi Dec 24 '14 at 6:28

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