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According to the answers to Are county clerks exempt from Title VII of the Civil Rights Act of 1964?, elected officials of pretty much any sort are exempted from the protections offered citizens under Title VII. But it seems that without this protection, municipalities could enact laws such as "no Muslim or person with a physical or mental disability may hold an elected position."

Something clearly protects this from happening. Yes, it is a violation of the constitution, but from my understanding laws are what establish protections against constitutional violations.

  • Doesn't seem like that would withstand 14th Amendment scrutiny. – Joe Sep 8 '15 at 19:52
  • Agreed, but what argument could be used, other than "it's unconstitutional?" – Daniel Goldman Sep 8 '15 at 19:56
  • And if you're saying, there must be a law (outside of the constitution) to prevent a state from enacting a law that violates the constitution - no, you're wrong; John Jay made that clear early on. The Supreme Court would invalidate any such law, or more likely a lower court would invalidate it and the Supreme Court would laugh when the attorney asked for them to review it. – Joe Sep 8 '15 at 19:56
  • I wouldn't be so sure about that Joe. SCOTUS upheld the internment of Japanese American citizens. No; it is far better if we can argue from case law rather than just "it's clearly unconstitutional" even if it is clearly unconstitutional. – Daniel Goldman Sep 8 '15 at 20:05
  • Not sure what you're asking, then. Judicial Review is the theory under which a law is struck down as unconstitutional, and it's not a 'law' per se; it's considered one of the fundamental purposes of the Court. What exactly are you asking? Are you asking for a specific case where this exact case did occur and was struck down? – Joe Sep 8 '15 at 20:07
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The protection lies in the fact that these sorts of restrictions are expressed in state laws, and states are Constitutionally forbidden from denying to any citizen the equal protection of the law, or from interfering with religion.

The First Amendment, as applied to the states through the Fourteenth Amendment, forbids states from making any law impeding free exercise of religion, or having the effect of establishing a state religion. This means that any law that forbids people of any religious denomination (including atheists) from holding any office (elected or not) under any level of government is unconstitutional. See Torcaso v. Watkins.

Moreover, Title VII's protected classes are also (with the exception of sex) suspect classes under the Equal Protection Clause. A state or local government may not pass a law discriminating against a suspect class unless it is a narrowly tailored law which is the least intrusive way to achieve a compelling state interest. In practice, that means a state can't pass a law discriminating on the grounds of national origin, race, or religion. Sex is a quasi-suspect class; government discrimination on the grounds of sex must further an important state interest in a way reasonably related to that interest; again, in practice this will tend to rule out laws saying "no women can be elected to this post."

The Americans with Disabilities Act actually does not exclude elected officials. It defines "employee" as "an individual employed by an employer."

The Equal Pay Act doesn't apply to elected officials, but again, sex is a quasi-suspect class.

The Age Discrimination in Employment Act also excludes elected officials, and this is the one case where a state really could discriminate -- the applicable test is whether the law is rationally related to a legitimate state interest, which is not an especially high bar.

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Preventing Constitutional violations is not solely the province of the Legislative body; it is the purpose of the Judicial body. No law is necessary to protect a right that is ensconced in the Constitution; the Constitution is that law:

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

The relevant concept is that of Judicial Review, and has been a cornerstone of American jurisprudence since nearly the beginning (in 1796, during the Jay court, and again in 1803 in the famous Marbury vs. Madison). Many Supreme Court cases depend on this; any time the Court strikes down a law, this is what they're doing.

Some civil rights are protected by the Constitution itself, or by its Amendments; the 14th amendment, for example, would prohibit a state from passing such a law as above. Congress has the power to enforce this prohibition, per the 5th section of the amendment:

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

But that's actually granting Congress that power (since the 10th amendment otherwise limits the power of Congress). Even if Congress does not exercise that power, nonetheless any state that passes a law contrary to this Amendment (or any other) would find that law subject to be struck down by the Courts under judicial review.

Of course, the actions of the Court are the actions of nine men and women, and it is certainly not guaranteed that they will act in a correct manner at any time; referring to the comment about the internment of Japanese citizens.

In the specific case noted - denying Muslims the right to hold office - this would be held up based on First Amendment rights as well as Fourteenth; Torcaso v Watkins supports that (which struck down a prohibition against atheists holding office, but the reasoning would be the same).

As far as mentally impaired individuals, many states do prohibit them from holding office. I wouldn't be surprised to find, in the (probably not near) future, that this is eventually struck down as well.

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