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Roy Torcaso, 96; Defeated Md. in 1961 Religious Freedom Case

By Adam Bernstein
Washington Post Staff Writer
Thursday, June 21, 2007

Roy R. Torcaso, 96, whose application to be a Maryland notary public led to a U.S. Supreme Court case that affirmed his refusal to take a state oath requiring him to declare a belief in God, died June 9 at the Himalayan Elderly Care assisted living home in Silver Spring. He had complications of prostate cancer.

Mr. Torcaso, who said he was an atheist, was a bookkeeper by profession. He worked for a Bethesda construction company when his legal challenge started in 1959. He had been urged by his boss to become a notary public.

At the Montgomery County Circuit Court, he refused to swear to a state oath given to notaries public that made them profess the existence of God.

"The point at issue," he said at the time, "is not whether I believe in a Supreme Being, but whether the state has a right to inquire into my beliefs."

The state disqualified him and barred his commission. The Maryland courts upheld the state constitution on the basis that Mr. Torcaso had not been compelled to pursue the notary public designation. The American Civil Liberties Union and the American Jewish Congress became involved on Mr. Torcaso's side.

In a case that became known as Torcaso v. Watkins-- Clayton Watkins was the Montgomery County Circuit Court clerk who administered the oath -- the U.S. Supreme Court unanimously ruled in Mr. Torcaso's favor in June 1961.

The high court declared that the Maryland test for public office "unconstitutionally invades [Mr. Torcaso's] freedom of belief and religion guaranteed by the First Amendment and protected by the Fourteenth Amendment from infringement by the States."

Writing for the court, Associate Justice Hugo Black said neither the state nor the federal government "can constitutionally force a person 'to profess a belief or disbelief in any religion.'

"Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs," Black wrote.

That August, Mr. Torcaso won his commission as a notary public after swearing to uphold the laws of the state and the federal Constitution. There was no mention of religious belief.

His first official act was to witness the application of his daughter Linda to take an exam for a ham operator's license.

Roy Reed Torcaso was born Nov. 13, 1910, in Enumclaw, Wash., where his parents were farmers. The son of a Catholic father and Protestant mother, he had been a nonbeliever his entire adult life.

He served in the Army in England during World War II. Reactivated during the Korean conflict, he learned Korean at the Army's language school and worked as an interpreter during prison interrogations.

After his U.S. Supreme Court victory, Mr. Torcaso held a series of bookkeeping jobs over the decades, none lasting very long. His daughter Linda Bernstein attributed this to her father's strong personality. She said her father was "opinionated" and "sort of difficult, very firm in his beliefs, or nonbeliefs."

He was an early voice in favor of racially integrating his Wheaton neighborhood. He later organized pickets against the Rev. Jerry Falwell's Moral Majority political organization and attended marches in favor of abortion rights.

He was a former board member of the American Humanist Association, an educational and philosophical group, and a former president of its Washington chapter.

He became a humanist counselor, with the authority to officiate at weddings in some states. In 1989, the U.S. Supreme Court refused to hear his challenge to Virginia laws that favored ordained ministers and prevented him from officiating at weddings there.

He also was a former Washington area president of the Hemlock Society, a right-to-die organization, and often brought the terminally ill some of his award-winning dahlias.

While he remained an atheist, he was a member of Unitarian Universalist Church of Rockville. He joined about 1960 because of the Rockville church's outspoken support for his lawsuit against Maryland's constitution when he said others were calling him a "dirty Communist" and "atheistic bum."

His wife of 60 years, Eileen Lusher Torcaso, died in 2006. A daughter, Susan Mims, died in 2002.

Besides his daughter, of Philadelphia, survivors include a son, Bill Torcaso of Cambridge, Mass.; a brother; three grandsons; and two great-grandsons.

© 2007 The Washington Post Company