2. But of course the statute isn’t standing alone; it’s enacted pursuant to the United States Constitution, which has a thing or two to say on such matters.
A. First, the Religious Test Clause — “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States” — might well cover this. As I understand it, being an enlisted man is not an “Office,” but I would think it’s a “public Trust.” And the forbidden “religious Test[s]” have long included oaths that contained religious assertions, assertions that members of some religions could not make. (Indeed such test oaths were the quintessential religious tests.) The existence of God is one such assertion that the federal government cannot demand as a qualification for a public trust.
B. Beyond this, the First Amendment more broadly bars the government from excluding atheists from positions because of their atheism, as the Court unanimously held in Torcaso v. Watkins (1961). (For a recent conservative endorsement of that position, see Justice Scalia’s opinion in Employment Division v. Smith (1990), which says, “The government may not compel affirmation of religious belief, see Torcaso v. Watkins.”) What is true for notaries — the job category involved in Torcaso — must also be true for members of the armed forces. (While many constitutional rights are significantly constrained once one joins the military, the Court has never suggested that this is one; moreover, the Religious Test Clause makes that especially clear, since at the Framing military positions were obviously on the Framers’ minds as among the most important positions within the federal government.)
C. Moreover, the Constitution itself always provides that affirmations are always adequate substitute to the oaths that it requires.
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