given to impose an oath involving a religious test as a qualification for office." 3 Farrand at 297. On June 10, 1788, in a speech to the Virginia Convention on ratification of the Constitution, Edmund Randolph stated:
It has been said, that if the exclusion of the religious test were an exception from the general power of congress, the power over religion would remain. I inform those who are of this opinion, that no power is given expressly to congress over religion. The senators and representatives, members of the state legislators, and executive and judicial officers, are bound by oath, or affirmation, to support this constitution. This only binds them to support it in the exercise of the powers constitutionally given it. The exclusion of religious tests is an exception from this general provision, with respect to oaths, or affirmations.
3 Id. at 310. Hence, the Religious Test Clause is a specific limit on the Constitution's requirement of an oath or affirmation that protects against any religious test or declaration from being included in the required oath.27 Plaintiffs allegation that all the Chaplains of the Senate and House have been from Christian sects is simply of no consequence to his religious test claim.28
Furthermore, the historical reasoning employed by the Supreme Court in Marsh to reject
27 Plaintiffs citation to Torcaso v. Watkins, 367 U.S. 488 (1961), is unavailing. The Supreme Court in Torcaso expressly stated that it was not deciding the plaintiffs Religious Test claim, but was instead holding the oath unconstitutional under the First Amendment. See Torcaso, 367 U.S. at 489 n. 1. Moreover, the oath at issue in Torcaso, which applied to all public offices in the state (Torcaso was appointed a notary public and thus required to take the oath), is unlike any oath at issue here, as the Torcaso oath expressly required the office holder to "declare that [he or she] believe[s] in the existence of God." Torcaso v. Watkins, 223 Md. 49, 53, 162 A.2d 438,440 (Md. 1960), rev'd, 367 U.S. 488 (1961).
28 Indeed, the Supreme Court in Marsh rejected the argument that the Court should infer an unconstitutional establishment of religion based on the fact that Nebraska's legislative chaplain had been a minister from one religion for the previous 16 years. Marsh, 463 U.S. at 792-93 (Court unable to "perceive any suggestion that choosing a clergyman of one denomination advances the beliefs of a particular church"). Moreover, plaintiff's argument also ignores the guest chaplain practice, which brings in "chaplains of various denomination, some not ordained, to deliver the opening prayer." Kurtz, 829 F.2d at 1134.
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