Unconstitutional religious test in Texas judicial race

One would think that an election involving judges would not suffer from any illegal activities – after all, judges start out as lawyers and they should know the law. It seems some Republicans in Texas need a refresher course.

In article on Law.com, Mary Alice Robbins reports that the Texas Republican Party sent a newsletter out that said E. Ben Franks, Democratic nominee for a seat on the 6th Court of Appeals, “is reported to be a professed atheist” and apparently believes the Bible is a “collection of myths.'”

The Republican Party notes in its recent newsletter that Article 16, §1(a) of the Texas Constitution prescribes the oath of office for all elected or appointed officials. The officeholder swears to faithfully execute the duties of the office and, to the best of his or her ability, preserve, protect and defend the Constitution and laws of the United States and of this state “so help me God.”

“I can take the oath,” Franks says.

However, the state Republican Party questions whether Franks will uphold the law, stating in the newsletter: “Should Franks be elected in November, one would have to conclude that he will hold true to his out of touch ‘atheist’ belief system and ignore the laws and Constitution of Texas.”

GOP Raises Religion in Court Race, Calling Democrat an Atheist

The problem is that the US Supreme Court case Torcaso v. Watkins (1961) struck down state religious tests for public jobs or offices. The US Constitution already includes a prohibition on religious tests.

In 1961’s Torcaso v. Watkins, a unanimous Supreme Court struck down a Maryland Declaration of Rights requirement that a person seeking to hold office in Maryland declare a belief in the existence of God. [Charles W. “Rocky” Rhodes, an associate professor at South Texas College of Law], who teaches constitutional law, says Torcaso applies to Article 1, §4 of the Texas Constitution, which provides that no one can be excluded from holding office on account of his religious sentiments, provided that he or she acknowledges “the existence of a Supreme Being.”

Even if Franks was a professed atheist — and Franks says he has never professed to be an atheist — that is not a valid disqualification from office in accordance with the U.S. Constitution, Rhodes says.

Referring to the Republicans’ allegation against Franks, Rhodes says, “What they’re trying to do is smear him.”

Indeed they are. So much for the GOP’s claim of religious liberty


This blog transitioned to a podcast in April 2020.

Even after the transition there maybe an occassional blog post that isn’t a podcast like this post.

Listen to our podcast for free HERE or on your favorite podcast app.

Secular Left Podcast is available on Apple Podcasts, Google Podcasts,

Doug Written by:

Founder, editor and host of Secular Left - please be gentle For media inquiries see our "About" page.