God & Courts in Maryland

Although they guaranteed to maintain religious tolerance in Maryland, the state's Roman Catholic founders also guaranteed death for anyone "who shall deny the Holy Trinity." Vestiges of that 1649 paradox have hung on ever since, involving Maryland in more church-state lawsuits than any other state in the Union. Nothing, though, quite beats the current snarl that Attorney General Thomas B. Finan calls "the gravest crisis in the administration of criminal law in my experience."

Most of the trouble can be traced to the fact that the U.S. Constitution forbids religious test oaths for any public official. Maryland's constitution does the same--but it also orders officials to declare "belief in the existence of God." In 1961, the U.S. Supreme Court unanimously upheld Maryland Notary Public Roy R. Torcaso, who refused to sign such a declaration because he was an atheist. The religious requirement, said the court, "unconstitutionally invades freedom of belief and religion."

Cynics' Escape. Despite that decision, Maryland retained the God requirement in its 98-year-old constitution, as do six other states (Arkansas, Mississippi, Pennsylvania, Texas, North and South Carolina). Maryland, though, was the only state requiring jurors to swear that God holds them "morally accountable," that they will be "rewarded or punished therefor either in this world or the world to come." All this gave cynics an easy escape from jury duty. But it also denied sincere nonbelievers "equal protection of the laws."

Not until this fall did the Maryland Court of Appeals finally bow to the "inevitable result" of the 1961 Torcaso decision. Then it bowed with a vengeance. The court reversed the murder conviction of a Buddhist named Lidge Schowgurow, who claimed that he had been denied equal protection while on trial for killing his wife (TIME, Oct. 22). Since Buddhists do not believe in God, he argued that members of his faith were automatically excluded from his jury. Even though no Buddhist would-be jurors were involved, the court upheld Schowgurow and voided the "belief in God" requirement for jurors throughout the state.

Judges Too. Had the decision been made retroactive the court might well have declared that Maryland has done nothing legal in its courtrooms for 98 years. But even without retroactivity, the decision brought to a halt every current criminal case in the entire state. Did it also void every current indictment issued by grand juries that had been forced to swear their belief in God? On Oct. 21, the court said yes in the case of a 16-year-old Seventh-day Adventist charged with rape--thus tossing 3,000 cases back for reindictment, 1,000 of them for retrial as well.

Last week the court issued two more decisions--one allowing defendants to waive reindictments, thereby avoiding delay in trial, the other permitting prisoners to use the religious oath as a challenge to jury convictions that are still open to appeal. But judges, too, must declare belief in God. Are nonjury trials before such judges also illegal? Answers to such questions are yet to come--and they are eagerly awaited by Maryland's 5,600 convicts.

Attorney General Finan, 51, wearily insists that "we have no regret over citizens resorting to the courts to resolve important constitutional questions."

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