By Sammi Lawrence
Anne Nicol Gaylor Legal Fellow
Freedom From Religion Foundation
In a sea of battles being waged against our basic freedoms, every victory against the tide of Christian nationalism serves as a beacon of hope for those who believe in the separation between state and church that our secular democracy is founded upon.
That’s why FFRF’s recent win in New Jersey, in which we successfully ended the state’s practice of forcing candidates to swear an oath to God in order to run for public office, is all the more significant.
What is this case about?
In late 2021, James Tosone, a New Jersey resident with political aspirations, contacted the Freedom From Religion Foundation seeking assistance with an egregious violation of his constitutional rights: The New Jersey Division of Elections required candidates for public office to swear an oath of allegiance containing the phrase “so help me God” in order to be listed on the ballot. Its policy clearly violated Article 6 of the U.S. Constitution, which prohibits the government from requiring any kind of religious test for public office. Tosone, a nontheist, had asked if he could strike out “so help me God” from the oath, but the Division of Elections refused, stating in an email that a version of the oath without the religious language would not be accepted.
Because Tosone refused to violate his conscience by swearing an oath to a deity in which he does not believe, he was unable to run for office in 2022.
Over the course of a year, FFRF tried contacting numerous New Jersey officials, including the secretary of state and the attorney general, in an attempt to resolve this constitutional violation and end the practice of denying nonreligious (or minority religion) candidates the ability to run for office without swearing an oath to God. FFRF did not receive a single response to any of our letters. So, we sued.
This October, FFRF in conjunction with our local counsel, Paul Grosswald, filed a federal lawsuit on behalf of Tosone against the secretary of state in order to end New Jersey’s unconstitutional practice of refusing to allow candidates to swear a secular affirmation in place of a religious oath. Our lawsuit asserted that the secretary of state, through the Division of Elections, had violated Article 6 of the U.S. Constitution, as well as the First Amendment’s Free Speech Clause, the Establishment Clause and the Free Exercise Clause.
Thankfully, the state quickly saw the light. In what might be FFRF’s fastest litigation victory to date, just weeks after filing the suit the state agreed to alter its unconstitutional practice and allow candidates to swear a secular affirmation in place of a religious oath going forward. Additionally, it issued a memo to all county clerks with updated guidance making clear that secular affirmations must be accepted in place of religious oaths.
Why does this case matter?
The impact and significance of this victory reaches far beyond James Tosone and New Jersey’s political candidates.
First, unconstitutional religious oaths requirements are, unfortunately, not a new phenomenon. For instance, in October 2020, FFRF filed a federal lawsuit challenging Alabama’s mandatory religious oath for voter registration. In order to register to vote, Alabama citizens had to complete a registration form that included an oath with the language “so help me God.” The lawsuit ended after the Alabama secretary of state agreed to amend all of the voter registration forms to allow voters to choose a secular affirmation and adopted a new administrative rule that allows voters to strike out “so help me God.”
Religious oaths also remain common throughout the court system. Witnesses and jurors are typically required to take an oath swearing that they will tell the truth, and often that oath ends with the statement “so help me God.” Legally, courts must allow witnesses and jurors to omit “so help me God” lest they violate their rights. In practice, however, FFRF continues to receive complaints from individuals who have been coerced into swearing a religious oath in order to participate in our court system. Religious oaths, especially in the intimidating and austere environment of a court, make people feel compelled to just go along with the system, even if they know that the government forcing them to swear an oath to god is wrong. People are afraid to speak up and risk earning the ire of the judge or other court staff, and often people assume that a secular option isn’t even available because it’s not presented to them. For these reasons and more, people turn to FFRF for help.
Government-imposed mandatory religious oaths are unconstitutional, archaic and wholly unnecessary. In 1961, the U.S. Supreme Court held in Torcaso v. Watkins that “neither a state nor the federal government can constitutionally force a person to profess a belief or disbelief in any religion.” In that case, Roy Torcaso — who later became one of FFRF’s honorary directors — had applied to become a notary public, but the state required him to take an oath declaring the existence of a god in order to hold that office. Torcaso refused, and the state wouldn’t allow him to become a notary. The U.S. Supreme Court firmly held in a unanimous decision that this mandatory religious oath violated both the First and 14th Amendments of the Constitution. The law has been clear for over 60 years: The government cannot force anyone to take a religious oath; yet, this practice persists throughout the country.
FFRF’s victory in New Jersey serves as a reminder that religious oath requirements are illegal, and we will not hesitate to take action to enforce the Constitution.
Second, and perhaps most importantly, this case reaffirms that the right to freedom of religion absolutely includes the right to be free from religion. No government — high or low, state or federal — may force someone to profess a religious belief that they do not hold. Full stop.
In a time when high-profile politicians like Oklahoma Superintendent of Public Instruction Ryan Walters are erroneously claiming that the separation of state and church is a myth and that the government has the right to push a narrow, ultraconservative form of Christianity onto the nation, legal victories like this continue to demonstrate Americans’ right to be free from religion still remains, no matter what Christian nationalists may say.
It’s essential to understand that the Christian nationalist attack on the Establishment Clause was a long game that took decades to come to fruition. Rome was not built in a day, and the wall of separation between state and church is not being dismantled overnight. The ultrareligious right did not begin its assault on the First Amendment with a wrecking ball, but rather used a thousand tiny chisels to make a thousand tiny gashes, and did that for years, culminating in the takeover of the U.S. Supreme Court and domination of the federal courts.
Now it is our turn to play the long game in the fight to protect and rebuild the wall between state and church. And in a long game, every point counts. Every state/church victory FFRF secures is significant. Every victory matters.