Article VI provides, in pertinent part:
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.
U.S. Const. art. VI, cl. 3.22
Plaintiff does not point to any oath or written qualification as the basis of his challenge. In fact, nowhere in the oath the Chaplains take,23 in the resolutions electing them, in the Rules of either House, or in any statute, is there a religious test or requirement imposed on the office of
22 Although the Court need not reach the issue to dispose of plaintiffs claim, it should be noted that the constitutional provision regarding oaths and prohibiting religious tests expressly applies to legislators and "all executive and judicial Officers," state and federal, but does not appear to include legislative officers such as the Chaplain.
" The Senate and House Chaplains are elected officers of those bodies, and, as officers, take an oath of office provided in 5 U.S.C. § 3331, as do other employees and officers of the Senate and House. That oath states:
I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
This is also the oath taken by Senators and Representatives. See Senate Rule HI, reprinted in S. Doc. No. 106-1, at 4; H. R. Doc. No. 106-320, § 197, at 81; House of Representatives Rule H.l, reprinted in id. at 345. As the text of the oath makes clear, the oath-taker may choose either to swear or to affirm his allegiance to the Constitution. While the House and Senate have not had cause formally to address the issue, federal agency practice is to strike the words "So help me God" when the oath-taker elects to affirm instead of swearing. See OPM Standard Form 61, Appointment Affidavits, at http://www.opm.gov/forms/pdfJill/SF61.pdf (containing oath of office under 5 U.S.C. § 3331, and providing that: "The words 'So help me God' in the oath and the word 'swear* wherever it appears above should be stricken out when the appointee elects to affirm rather than swear to the affidavits"),
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