“The Name of Father Cummings Will Be Long Remembered”: Cummings v. Missouri , Religious Liberty, and the Test Oath Controversy

Abstract The 1867 Supreme Court decision in Cummings v. Missouri occupies an ambiguous place in the legal history of America’s Reconstruction period. Typically paired with Ex parte Garland as one of the “Test Oath Cases,” Cummings concerned the legitimacy of the loyalty oath that Missouri’s new constitution imposed in 1865. In both Cummings and Garland (which concerned a federal oath), the court decided that the loyalty oaths violated the US Constitution because they amounted to (1) bills of attainder, and (2) ex post facto laws, both of which are prohibited under Article I, Section 9, Clause 3 of the Constitution. The question of whether the loyalty oaths were bills of attainder, and/or ex post facto laws, was undoubtedly the focus of the majority opinions in Cummings and Garland. However, the state and national debates over Cummings in the years 1865–1867 focused mostly on religious liberty and the separation of church and state. Although historians of Reconstruction Missouri and of religious liberty jurisprudence have sometimes commented on this aspect of the case, basic synopses of Cummings regularly downplay or ignore the religion factor altogether. The debate over the Missouri test oath illuminates the contours of America’s religious liberty convictions during the fractious 1860s. Cummings v. Missouri offers a special opportunity to understand how Americans debated the rights of religious conscience immediately following the Civil War.