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Art. I, § 5 Religious Freedom. at One Time Such Oaths Had Been Instruments for the Oppression of Dissenters

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Art. I, § 5 Religious Freedom. at One Time Such Oaths Had Been Instruments for the Oppression of Dissenters 21 Art. I, § 5 religious freedom. At one time such oaths had been instruments for the oppression of dissenters. Thus Article VI of the United States Constitution, prohibiting test oaths for federal officers in language identical to the first part of Section 4, betrays the origin of this section. All Texas bills of rights prior to 1876 repeated the guarantee against religious test oaths in identical form until, in 1875, the framers added the words of Section 4 after the semicolon. Explanation Very few cases refer to Section 4. Obviously public officials have not been required to take religious test oaths, hence there has been no ground for litiga- tion. Section 4 has been cited, along with succeeding sections dealing with religion, in some child custody cases. Conceivably the award of child custody is a public trust within the meaning of this section but those seeking such awards are not required to take religious oaths. Indeed the courts steer clear of any inquiry into the appli- cant's religious beliefs. When in 1876 Section 4 grew from a simple prohibition to include the proviso regarding belief in a Supreme Being, the guarantee was weakened. In fact, a bill was introduced in the Fifty-sixth Legislature requiring public school teachers to swear that they believed in a Supreme Being. The proviso seemed to authorize this mild test oath. While the bill was under consideration the United States Supreme Court handed down a decision declaring the Maryland test oath for public officers unconstitutional when it was applied to an atheist (Torcaso v. Watkins, 367 U.S. 488 (1961)). This and subsequent decisions indicate that the Supreme Being proviso violates the religious liberties guarantees embodied in the Fourteenth Amendment and is unconstitutional. Comparative Analysis A total of 26 states prohibit religious tests for public office. Only two states other than Texas contain the proviso that tests not be required so long as a belief in a Supreme Being is acknowledged. Recent constitutions have not included sections on these subjects. Author's Comment Protection against religious test oaths for public offices or public trusts is a basic protection which might be invaded by zealous pressure groups. Since the adden- dum of 1876 to Section 4 does seem to dilute the broad guarantee and presumably violates the United States Constitution, it should be deleted. Sec. 5. WITNESSES NOT DISQUALIFIED BY RELIGIOUS BELIEFS; OATHS AND AFFIRMATIONS. No person shall be disqualified to give evidence in any of the Courts of this State on account of his religious opinions, or for the want of any religious belief, but all oaths or affirmations shall be administered in the mode most binding upon the conscience, and shall be taken subject to the pains and penalties of perjury. History The common law required a witness to take an oath which would bind him to tell the truth for fear of supernatural punishment. Hence persons without the requisite religious beliefs could not serve as witnesses. Section 5, which has no predecessor in previous Texas constitutions, permits such persons to testify and hence it represents a departure from the common law rule. Presumably "reference 22 Art. I, § 5 to the 'pains and penalties of perjury' was intended to allay any fear that abolition of the religious test for witnesses might result in the admission of untrustworthy evidence" (Fritz and Roberts, "The New Juvenile Delinquency Act," in Com- ments, 23 Texas L. Rev. 165, 171-72 (1945)). Explanation The right to testify is important to judicial protection of other rights; thus Section 5 furnishes religious protection of some significance. The section has been cited in an appreciable number of cases although it is certainly not one of the much litigated parts of the Bill of Rights. In several instances the court of criminal appeals had to correct clear violations of Section 5 by lower courts (Riddles v. State, 47 Tex. Crim. 69, 46 S.W. 1058 (1898); Ramirez v. State, 159 Tex. Crim. 410, 264 S.W.2d 99 (1953)). In other cases Section 5 was simply lumped together with Sections 4 and 6 to vindicate freedom of religion or separation of church and state. In fact, however, Section 5 is limited to judicial proceedings including the swearing of jurors and does not extend to other oaths or subjects (Campbell v. State, 43 Tex. Crim. 602, 68 S.W. 513 (1902)). Judicial construction of Section 5 has had some unfortunate consequences. It requires that false oaths within its scope must be punishable as perjury. Thus, in 1904, the court of criminal appeals decided that a child of seven, even if otherwise qualified, could not testify because a statute exempted children of her age from punishment for perjury. (Frazier v. State, 47 Tex. Crim. 24, 84 S.W. 360 (1904)). Judge Brooks, dissenting, noted that children of this age had been permitted to testify at common law without being subject to the "pains and penalties of perjury." Narrow construction by the majority, he charged, had turned what was presumably intended to be an expansion of individual liberty into a requirement that a penalty be enforced against the weakest members of society. Short of a constitutional amendment, the legislature did what it could; it amended a humani- tarian statute exempting children under nine from criminal prosecution to make them liable for perjury (Moore v. State, 49 Tex. Crim. 449, 96 S.W. 327 (1906); 23 Texas L. Rev. .165 (1945)). If young children are ineligible to testify, their helpless- ness regarding crimes committed against them increases. Nevertheless, narrow interpretation of Section 5 continued to hamper the state when it sought to deal with children under the Delinquent Child Act. In 1944 the court of criminal appeals declared unconstitutional a section of the act which provided, "nor shall any child be charged with or convicted of a crime in any court" because the law failed to make children punishable for perjury (Santillian v. State, 147 Tex. Crim. 554, 557, 182 S.W.2d 812, 815 (1944); Head v. State, 147 Tex. Crim. 594, 183 S.W.2d 570 (1944)). Another legal tangle surrounded Section 5. The form of oath prescribed by the legislature for jurors ended with the words, "so help me God." In 1920 the court of criminal appeals set aside several guilty verdicts because the jurors involved had not used these words when being sworn. In 1972 this requirement was challenged on the ground that the prescribed form of oath violated Section 5 by disqualifying atheists and agnostics from jury service. The court of criminal appeals responded by overruling the earlier cases. The term "oath," it noted, referring to the Code of Criminal Procedure, is to be construed as including affirmation. The purpose of Section 5 was to permit affirmation and to rely upon the prospect of punishment for perjury as a sanction to enforce truthfulness instead of religious fears of future punishment alone. The challenged statutes, said the court, contained no require- ment of an expressed belief in a Supreme Being (Craig v. State, 480 S.W.2d 680 (Tex. Crim. App. 1972)). 23 Art. I, § 6 Comparative Analysis A total of 21 states provide that there shall be no religious tests for witnesses. Five specifically prescribe that testimony shall be by oath or affirmation. Author's Comment The religious protection in Section 5 is fairly narrow. Its construction has at times frustrated legitimate legislative objectives although it may also have saved some defendants from religious discrimination. However, the latter might pre- sumably have been protected equally well under some other religious guarantee in the Texas Bill of-Rights or under the Fourteenth Amendment. Sec. 6. FREEDOM OF WORSHIP. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship. History The Constitution of 1836 contained a much shorter statement of religious freedom and of the separation of church and state. However, the present wording is found in the Constitution of 1845 and it was retained substantially unchanged in each succeeding constitution. This section had a special meaning for Texans. They shared not only the Anglo-American tradition of those struggles which resulted in the religious guarantees of state and national constitutions but in addition they had their own special religious problems as citizens of Mexico. As Justice Brown put it, "Prior to the Revolution of 1836, the Catholic was the established religion of the Republic of Mexico, and all citizens of Texas were required to conform to the teachings of that church. It was supported by the government, and, by taxation, the citizens were compelled to contribute thereto. One of the charges made against the Republic of Mexico in the Declaration of Independence was, 'it denies us the right of worshipping the Almighty according to the dictates of our own conscience by the support of a national religion, calculated to promote the temporal interest of its human functionaries rather than the glory of the true and living God .. .'." (Church v. Bullock, 104 Tex. 1, 6, 109 S.W. 115, 117 (1908)).
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