Raising Awareness That Atheists Can’t Hold Public Office in All States

People are still talking about Asheville, North Carolina city councilperson Cecil Bothwell and the recent consciousness-raising of the fact that several states technically forbid atheists from holding public office.

In Bothwell’s case, the state constitution says his atheism prevents him from holding his seat, but the U.S. Constitution says otherwise. (The U.S. Constitution trumps the state constitution, says the law.)

“Frankly, this is one of the easiest cases I’ve ever seen,” said Arnold Loewy, George R. Killam Jr. Chair of Criminal Law at Texas Tech, who teaches a course of the First Amendment. “It’s crystal clear that the North Carolina and Texas law is unconstitutional.”

…

Rewriting the law would take time away from lawmakers who would rather deal with current issues, said Dan Rodriguez, a University of Texas professor of law who specializes in state law.

“Often it’s just not worth the effort or the energy,” Rodriguez said. He said with laws like this, state leaders “just have to hold their breath and hope no one notices.”

Bothwell is taking all this attention in stride:

As for Bothwell, he says his atheism is irrelevant to his duties as a councilman.

“I don’t find any need in my day-to-day life for God to explain things to me,” he said. “When religion gets tangled up with government, it always causes problems.”

And while his fellow council members are “bemused” by the whole affair, Bothwell said, he’s not worried about being forced from office. He said the controversy was manufactured by political opponents “who don’t want to see a progressive on the council.”

Journalists should be taking advantage of this situation — it’s not often we get a chance to talk about how many states forbid atheists from holding public office.

It’d be nice to have some more soundbytes we could use against elected officials in the future to highlight their bigotry.

Let’s get religious leaders on the record — politicians, too. We need to know what they say about these laws. Do they think they’re ridiculous (as they should) or do they argue that atheists should indeed be forbidden from holding office?

Let’s make the general public aware of this injustice, even if it is unenforceable.

Soon, this controversy will die away and Bothwell will go on with his work as usual. If that happens without us making some noise over this story, we’d be missing out on a tremendous opportunity.

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Mikey

I never thought I’d see an Avalanche Journal story here.
Brittany

Rewriting the law would take time away from lawmakers who would rather deal with current issues, said Dan Rodriguez, a University of Texas professor of law who specializes in state law.

Oh poor them for having to do their jobs!
Vincent

I’m doing some preliminary searches into other obsolete parts of state constitutions.

Did you know in Alabama the state constitution requires schools to segregate by race?
Section 256
“…Separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race.”
http://www.legislature.state.al.us/CodeOfAlabama/Constitution/1901/CA-245806.htm

Article 1 Section 22(b) of the Missouri constitution lets women get out of jury duty just because they are women:
“No citizen shall be disqualified from jury service because of sex, but the court shall excuse any woman who requests exemption therefrom before being sworn as a juror. ”

Let me know if you find more.
Stephen P

Rewriting the law would take time away from lawmakers who would rather deal with current issues, said Dan Rodriguez, a University of Texas professor of law who specializes in state law.

“Often it’s just not worth the effort or the energy,” Rodriguez said.

I’m not sure whether this is a dreadful indictment of Rodriguez or of the legal system, but it’s certainly one or the other, if not both.

Apparently making laws say what they mean is too much trouble for law-makers.
JD

The headline is clearly wrong, it’s more about raising awareness of null laws than anything else. The laws in question are usually the better part of a century old anyway, not some new formed trap that’s waiting to spring. Maybe trap is the wrong word, I doubt an overzealous DA or prosecutor is going to be able to prevent anyone from taking office, at worst, it might delay the inevitable a few months.
Eamon Knight

I’m not sure whether this is a dreadful indictment of Rodriguez or of the legal system, but it’s certainly one or the other, if not both.
Apparently making laws say what they mean is too much trouble for law-makers.

I’m inclined to sympathize with the legislators on this point. Just about every jurisdiction has a few ancient statutes still on the books (“automobiles must be preceded by a flagman on foot”, or a town levy on buggy-whip sales; that kind of thing) that haven’t been enforced in living memory. IANAL, but I believe they’re considered dead, and any legal action based thereon would be summarily dismissed by any court. That being so, it really isn’t worth spending much legislative time cleaning up the anachronisms. This “no atheists allowed” clause rankles (especially being in as prominent a place as the state Constitution), but just ignoring the stupid thing may well be the easiest course of action.

Of course, trying to repeal it, or fight it out in court, might be entertaining, and effective in exposing a few bigotted fools to the cleansing light of day.
Ron in Houston

Yeah, the headline is misleading – they can hold office. It’s more about raising awareness that there are still laws on the book that discriminate against atheists.

However, as someone pointed out there are loads of those types of laws still on the books. Despite Lawrence v. Texas, the law making “homosexual conduct” a crime is still on the books in Texas.
Erp

Note this particular law is in the state constitution so changing it requires a vote by the people of North Carolina. Even though it is clearly unconstitutional I’m not sure a majority of North Carolinians would vote to remove it (it also requires passing both houses by 3/5 vote twice). I think there are other more pressing issues to work on.
bernerbits

The U.S. Constitution trumps the state constitution, says the law.

The libertarian in me says this is NOT true. If federal trumps state, then we have bigger issues at hand.
Gary

The libertarian in me says this is NOT true. If federal trumps state, then we have bigger issues at hand.

The libertarian in you needs to familiarize himself with Article VI, Clause 2:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”
Mathew Wilder

Thank you Gary for pointing out what every citizen ought to know. The Supremacy Clause is basic high school civics.
Vincent

The libertarian in me says this is NOT true. If federal trumps state, then we have bigger issues at hand.

The libertarian in you needs to familiarize himself with Article VI, Clause 2:

It’s not quite that simple. When state laws and federal laws are in DIRECT conflict, then federal laws prevail.
In most cases they are not in direct conflict, for example there is federal Trademark law and state Trademark law. Most of the time their provisions are nearly identical, with something like the term of years on a statute of limitations disagreeing, or the rules of compensation. On the other hand, state drug laws are becoming a big area of conflict and federal drug laws trump. However, that does not mean the federal government can make state police enforce federal laws.

(should I have said IAAL?)
bernerbits

I am by no means an expert on constitutional interpretation, but it seems the supremacy clause only applies insofar as a law is expressly provided for in the constitution, due to the 10th amendment guaranteeing states local jurisdiction over all other matters.

Upon reviewing the 14th amendment I now believe that this law is unconstitutional. The 1st amendment alone does not prohibit state government from infringing on religious freedom.
Autumnal Harvest

Bernerbits, I’m not sure what you mean with your “qualification” about the 10th Amendment. Yes, the U.S. Constitution only trumps state constitutions when the two are in conflict. If the two are not in conflict (e.g. because the U.S. Constitution is silent on a matter), no trumping occurs, but that’s trivially implied in the definition of “trump.”
bernerbits

Bernerbits, I’m not sure what you mean with your “qualification” about the 10th Amendment. Yes, the U.S. Constitution only trumps state constitutions when the two are in conflict. If the two are not in conflict (e.g. because the U.S. Constitution is silent on a matter), no trumping occurs, but that’s trivially implied in the definition of “trump.”

The idea is that if a federal law is not specifically provided for by the constitution, the 10th amendment would suggest that such a law is unconstitutional, and as such any state law in conflict should be held up in court, and the federal law struck down.

Not at all how it plays out in real life, but it seems to me like the most honest interpretation.
Veritas

Totally unconstitutional. But bernerbits is right – it’s the 14th Amendment which does so, not the clause cited by Gary. To be fair, most libertarians hate and despise the 14th Amendment, like Ron Paul (who conveniently forgets it exists from time to time, or maybe he’s just old and insane).
bernerbits

Thanks Veritas.

I’m not strictly libertarian… it’s just that my (again, admittedly amateur) personal reading of the constitution and history seems to agree with the libertarian ideal of laissez-faire. A lot of libertarians in my experience do go far beyond a strict constructionist reading of the constitution.
Autumnal Harvest

Bernerbits, I understood that you were claiming that powers need to be expressely, explicitly, provided for in the U.S. constitution for the federal government to exercise them (this argument was, of course, rejected in the early days of the republic, in favor of the “necessary and proper clause,” in debates over internal improvements and a Bank of the United States, but whatever). I’m just saying that’s completely irrelevant to your (incorrect) claim that the federal constitution doesn’t trump state constitutions. When the federal constitution conflicts with a state constitution, the former trumps the latter. Yes, of course no trumping occurs if the federal constitution does not in fact grant the federal government powers, but that’s because the federal law was unconstitutional, not because the federal constitution failed to trump the state constitution. You position is like claiming that a full house doesn’t bear three of a kind in poker, because some hands are not in fact full houses.

All kind of academic, since we agree that this law is unconstitutional, but hey, I have the day off and feel argumentatitive. 🙂
bernerbits

I’m just saying that’s completely irrelevant to your (incorrect) claim that the federal constitution doesn’t trump state constitutions.

Yeah, I’m not saying that. I was saying religious freedom at the state level wasn’t protected by the constitution, and so the 10th amendment kicked in. I subsequently discovered a clause in the 14th amendment that prohibits states from infringing on constitutionally protected rights, and reversed my opinion.

Nevertheless “necessary and proper” doesn’t override the 10th amendment completely. If it doesn’t at least have something to do with advancing a power stated or implied by the constitution it should be a state (or individual) matter, and I believe the 10th amendment supports this.

And you’re right in that a federal law that goes out of bounds is unconstitutional, and is not strictly a case of state “trumping” federal.
bernerbits

All kind of academic, since we agree that this law is unconstitutional, but hey, I have the day off and feel argumentatitive. 🙂

That’s OK anyway. My politics are weak and I’m learning.
bernerbits

You position is like claiming that a full house doesn’t bear three of a kind in poker, because some hands are not in fact full houses.

No, it’s more like claiming a pair beats a straight because the guy with the straight cheated 🙂
Gary

Yeah, I’m not saying that. I was saying religious freedom at the state level wasn’t protected by the constitution, and so the 10th amendment kicked in

Correct. At the time the Constitution was adopted, several states had established churches. Nothing in the Constitution (as originally written, or including the Bill of Rights) required those churches to be disestablished. The Bill of Rights was a guarantee of rights against federal power, not against state power.

I subsequently discovered a clause in the 14th amendment that prohibits states from infringing on constitutionally protected rights, and reversed my opinion.

Presumably you are referring to the “equal protection” clause: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”

This might, indeed, make the clause in the North Carolina constitution unconstitutional. However, it would have unconstitutional long before that because of Article VI, Section 3: “…no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” In other words, the clause currently in North Carolina’s constitution barring atheists from holding office would have been unconstitutional at any time since the U.S. Constitution has been in effect.

A bit of historical background here. The first North Carolina constitution, adopted in 1776, said “That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.” Thus, not only atheists, but Catholics and Jews were denied the right to hold office. This clause was invalidated when North Carolina ratified the U.S. Constitution in 1789.

Since 1776, North Carolina has twice adopted new constitutions. The constitution of 1868 declared, “The following classes of persons shall be disqualified for office: First, All persons who shall deny the being of Almight God….” This language was retained when the third state consitution was adopted in 1971.

In short, North Carolina has insisted on retaining, in its constitutions, a provision that has always been a violation of and in defiance of the Constitution of the United States, despite two clear opportunities to remove it.

Or, to put it another way (and with apologies to Mel Brooks), “We’ll take the Catholics and we’ll take the Jews — but we don’t want no atheists!”
Stephen P

Just about every jurisdiction has a few ancient statutes still on the books … but I believe they’re considered dead, and any legal action based thereon would be summarily dismissed by any court. That being so, it really isn’t worth spending much legislative time cleaning up the anachronisms.

Just like it isn’t worth spending much time cleaning your house, maintaining your car or keeping textbooks up to date.

No, sorry, I’m not buying that. A legal system requires maintenance just like any other system. If the laws are clearly dead, then it costs a negligible amount of effort to remove them – just make a big list and wipe them out in one go. If, on the other hand, it isn’t clear whether they are dead, then the legal clarification is necessary. Failing to do so is asking for trouble, just as failing to maintain the brakes on your car is asking for trouble.
Baconsbud

I have to agree with Stephen P. on this.

How many times have people had to take time off from work because they have been charged with a violation that is all but dead and still on the books. How many times have cops used laws that are on the book but only enforced when they can’t find any other reason to arrest someone? I know it doesn’t happen a lot but the thing is it shouldn’t happen at all.
Erp

Laws yes can be wiped off relatively easily. This however is written into the state constitution so to remove it means an amendment specifically to remove it. My guess is the soonest it will go is the next time they overhaul their constitution (probably in another 100 years) where the removal can be hidden in all the other changes.

Admittedly the fun bit is I suspect that I can find some Christians who would deny that God is a ‘being’ since to describe God as a being is to put limits on God.