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May 29 2012

No religious test except for this one tiny thing

When I sat next to Wafa Sultan at the dinner weekend before last, she asked me if there were any penalties for being an atheist in the US, and I told her there were two states that ban atheists from running for office. She was amazed and incredulous, and I assured her it was true; Tennessee and I think Arkansas, I added.

But I was wrong. It’s not two, it’s seven.

[Update for clarification: these are all articles of state constitutions, and (I'm told) (by Matt Dillahunty) they could never be enforced. I kind of assumed that anyway, but it's better to spell it out.]

Matthew Bulger of American Humanists lists them.

Arkansas, Article 19, Section 1: No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any Court.

Maryland, Article 37: That no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God; nor shall the Legislature prescribe any other oath of office than the oath prescribed by this Constitution.

Mississippi, Article 14, Section 265: No person who denies the existence of a Supreme Being shall hold any office in this state.

North Carolina, Article 6, Section 8 The following persons shall be disqualified for office: Any person who shall deny the being of Almighty God.

South Carolina, Article 17, Section 4: No person who denies the existence of a Supreme Being shall hold any office under this Constitution.

Tennessee, Article 9, Section 2: No person who denies the being of God, or a future state of rewards and punishments, shall hold any office in the civil department of this state.

Texas, Article 1, Section 4: No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.

I love the Maryland one – no religious test except for belief in the existence of God. Oh is that all!

Via Paul Fidalgo.

23 comments

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  1. 1
    unbound

    Kind of surprised the laws in Maryland and Texas haven’t been challenged since they are logically inconsistent within the same sentence (no test, but have to believe…which is a test).

  2. 2
    jamessweet

    Now, it’s important to point out that not a single one of these laws would survive judicial scrutiny. There are countless laws on the books in states and municipalties across the US that are completely absurd, often logistically unenforceable, and utterly unable to withstand any legal challenge should some ill-intentioned government official attempt enforcement.

    Of course, even though in general it is not always worth the legislative effort to get these laws off the books, ones that target minority groups should be repealed, both for symbolic reasons, as well as for the very real possibility that some privileged idiot very well might attempt enforcement, thereby creating a real headache for the victim. (I’m thinking of Lawrence v. Texas here… note that in this case, there was a triple-whammy, because the men who were arrested were poor, and one was black — so you had the class/race/sexuality victimization trifecta there)

    I’m just thinking, I am not sure if Wafa Sultan knows that this is the case in the US, i.e. the persistence of unenforceable laws. It’s still shocking, but somewhat less shocking than if such a religious test really could be enforced in those seven states.

  3. 3
    Tabby Lavalamp

    I wonder if it can be used as a reason to get out of jury duty in those states. Arkansas especially, because if you can’t be a competent witness, how can you be a juror?

  4. 4
    jamessweet

    Kind of surprised the laws in Maryland and Texas haven’t been challenged

    You need someone with standing, i.e. you would need an atheist to run for office and be denied a place on the ballot as a direct result of her atheism.

    That’s one of the reasons why Lawrence v. Texas took so long to come about… Nobody was actually enforcing anti-sodomy statutes anymore, so there was no way to challenge them!

  5. 5
    Tabby Lavalamp

    Oh, I missed this as well – it appears the one in Texas only applies to men.

  6. 6
    unbound

    @jamessweet – Thanx for the info. I didn’t realize someone was needed with standing to go after state constitution issues.

  7. 7
    Robert B.

    For that matter, there are plenty of religions that don’t believe in an “Almighty God.” Buddhism, Shinto, Wicca, and I think at least some strains of Hinduism.

  8. 8
    Ophelia Benson

    Yes, Matt Dillahunty made the same point on Twitter – they’re just archaic docs.

  9. 9
    Steerpike

    Good luck getting elected in any of those places (with the possible exception of Maryland, and maybe Texas in certain areas, e.g. Austin) if it were known that you were an atheist. In fact, in most places in this country, “my opponent is an avowed atheist” would be a nearly insurmountable attack.

  10. 10
    Jeff Chamberlain

    One reason these kinds of statutes are seldom repealed, even though almost certainly illegal and unenforceable, is that any legislator who voted for repealing them would likely be branded as “against God” in the next election. This is also a reason why other statutes, such as those prohibiting “sodomy,” often remain “on the books” despite being unconstitutional.

  11. 11
    baal

    So called ‘anti-crime’ legislation has many of the same problems. No one wants to lose their seat for standing up for the accused.

    I especially like the one from Tennessee. You could deny the existence of god so long as you agree the hell awaits you after you die.

  12. 12
    evilDoug

    Further to Tabby’s comment, the Arkansas rule raises the question of what happens if the accused in court is an atheist. If atheists aren’t allowed to give testimony and (presumably) cannot be on a jury, how is the accused to be tried by “peers”? How could any conviction made under such circumstances be “safe”? Seems like it could reverse the whole “I found Jesus in jail” bit.

  13. 13
    Jeff D

    State statutes or state constitutions that impose religious tests for public office have been and are unconstitutional since Torcaso v. Watkins (367 U.S. 488, 81 S.Ct. 1680) in 1961. That is a second reason why there has been not much of an effort to get these state laws off the books.

    The Maryland Constitution’s provision was the one that was found to be unconstitutional in Torcaso.

  14. 14
    eric

    Maryland’s article 36 also gives a religious test for potential witnesses and jurists. And this one isn’t a generic or ‘mere’ belief in God – its three specific beliefs apparently designed to keep anyone not a fairly orthodox Christian out of the jury box:

    …nor shall any person, otherwise competent, be deemed incompetent as a witness, or juror, on account of his religious belief; provided, he believes in the existence of God, and that under His dispensation such person will be held morally accountable for his acts, and be rewarded or punished therefor either in this world or in the world to come.

    So, you had to believe in God, AND an afterlife, AND a judgement.

  15. 15
    Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    @unbound – you always need standing to file a lawsuit. Standing is sometimes defined by common law (having suffered legal injury) or sometimes defined according to statute, but standing must always exist. There is no such thing as an “advisory opinion” where one can file a lawsuit in advance of injury to make it clear to some third party that the court would rule against them if they actually took a course that they seemed likely to take (in this case that the state would take and likelihood would be assessed on the basis that a law exists requiring the state to act in such-and-such a way).

    @jamessweet: Yes, you’re correct that standing is always necessary. However it need not be a person who is denied the opportunity to take office. If you can prove the law hurts you in other ways, you still have standing.

    For instance, if there were a number of politically active people likely to donate money to candidates in the zone of the political arena occupied by a certain candidate, and if those people were refusing to give money to a candidate because they were afraid that even if the candidate won the candidate would be unable to take office, and thus donations would be wasted, then the candidate could claim the existence of the provision harms fundraising necessary for participation in the political process.

    This is a hypothetical, of course, but standing isn’t limited to those who suffer the direct/limited, literal, and maximal enforcement of a provision.

    crap, limited and maximal seem at odds there – what I mean is limited in terms of how we interpret who is effected (thus the “direct/” part of that) and maximal in the sense that they suffer the full effect – in this case denial of office. In truth, even if office was withheld for 2 weeks while the state government hemmed and hawed, there would be standing to sue…at least during those 2 weeks. And if there was a lingering effect, the standing to sue would also linger (say if the candidate-now-officer never received a paycheck for those 2 weeks, but had been able and willing to serve and was only denied a paycheck on the basis of being unconstitutionally being denied office).

    Does that help?

  16. 16
    BenSix

    I love the Maryland one – no religious test except for belief in the existence of God. Oh is that all!

    What’s funny is that this may have seemed radically progressive at the time. (“You mean Protestants AND Catholics can stand? Woah!”)

  17. 17
    anne

    Surprising that the Arkansas witness disqualification has never been challenged.

  18. 18
    eric

    @17 – not really surprising. As James and others have mentioned, these sorts of unenforcible laws rarely get challenged because a challenge typically requires a plaintiff that has been (or will likely be) negatively affected by the law. However, if that law isn’t being enforced, nobody is being affected by it.

    So, take the MD one as an example. As long as MD doesn’t require any sort of belief in God to hold office (and they don’t, because it would be unconstitutional), nobody can very well claim that the on-book requirement has hurt them.

    States have a lot of these sorts of laws: leftover, historically anachronistic laws that are no longer in force but which have not been edited out of the legal record (mostly because it would take an act of the legislature to do that, and this isn’t a high legislative priority).

  19. 19
    anne

    @ eric Yes, I get that. Of course I don’t know the incidence of non-belief in Arkansas. I expect it’s pretty low, but even so it surprised me that the non-competence of a witness has never been a material issue in either a civil or a criminal trial. It seemed more likely that this would be a matter of contention than that someone seeking civil office would challenge disqualification – if only because someone engaged in litigation is more likely to be litigious.

  20. 20
    Ed Brayton

    You don’t need standing against these laws, they’re already moot. The Supreme Court overturned them all more than 50 years ago, in the case Torcaso v Watkins.

  21. 21
    Dave Ricks

    Margaret Downey’s talk at the conference was about her offering secular weddings in Pennsylvania.

    She wants to offer the same services in the surrounding states, but state laws would need to change to let her be the officiant who can legally solemnize the ceremony. The problem is state laws don’t let her as an atheist. While she could easily get a “mail-order” ordination over the Internet, faking Christianity to fool the government would miss the point.

    She also said she needs couples to provide standing so she can file her cases against the state laws.

  22. 22
    Ian

    Do witnesses in court in these states have to swear on the Bible then? The only time I have had to make a statement under oath in the UK I ‘affirmed’ that what I said was true etc.

  23. 23
    Yoav

    These laws are currently unenforcible but undercover theocrat Ron Paul is trying to change that. If he manages to get his “we the people” act passed then they will become enforcible since Torcaso v Watkins and other ruling regarding the establishment clause will no longer be binding precedents and the federal courts will not be allowed to hear new cases.

  1. 24
    Christianity Is Not Under Attack or Endangered, So You Can Relax « Liberal Lore

    [...] is actually illegal in seven US states for an atheist to hold public office. Arkansas, Article 19, Section 1: No person who denies the [...]

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