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In 1971, the US State of North Carolina rewrote its constitution. According to this source, one of the purposes of this was that "Ambiguities and sections seemingly in conflict with the U.S. Constitution were either dropped or rewritten."

Yet, the NC Constitution Article VI states:

The following persons shall be disqualified for office:
First, any person who shall deny the being of Almighty God.

This seems to be somewhat in conflict with the freedom of religion nominally guaranteed by the first amendment to the US constitution, as a barrier to religious practice of community/political representatives. Is it? If not, why not?

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4 Answers 4

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In Torcaso v. Watkins, 367 U.S. 488 (1961), the US Supreme Court ruled unanimously that a similar provision in Maryland's constitution violated the First Amendment and could not be enforced. So presumably the North Carolina provision is similarly unconstitutional and unenforceable.

It's not clear why it wasn't removed in 1971.

I found references to a 2009 incident in which an avowed atheist named Cecil Bothwell was elected to the Asheville, NC city council. Opponents apparently threatened to mount a legal challenge to his eligibility under the Article VI provision. It's not clear if they actually tried to do so, but in any event, Bothwell served his full four-year term and was then re-elected for another.

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – Pat W.
    Dec 20, 2021 at 23:31
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Not that the freedom of religion clause of the First Amendment of the US Constitution isn't relevant, but North Carolina's Article VI seems to contradict explicitly Article VI, Clause 3 of the US Constitution:

"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

The latter part of this is known as the "No Religious Test Clause" and it is applicable to the states not only by its own language but by the 14th Amendment to the US Constitution. I suspect that if this provision of North Carolina's constitution is ever tested in federal court, it would be overturned.

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    Footnote 1 to Torcaso reads: "Appellant also claimed that the State's test oath requirement violates the provision of Art. VI of the Federal Constitution that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Because we are reversing the judgment on other grounds, we find it unnecessary to consider appellant's contention that this provision applies to state as well as federal offices." Some argue that provision does not apply to the states. Since the 1st has the same effect, it makes no difference in practice. Dec 20, 2021 at 15:44
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    Yes. The Supreme Court tends to move in slow steps, one at a time. The NC Constitution can be interpreted as prohibiting an atheist from running for office. If it's ever applied that way, the Court might reach Article VI, Clause 3.
    – Wastrel
    Dec 20, 2021 at 16:03
  • It might, but the same result would be reached by applying the 1st/14th amendments, as in Torcaso, so they might not. Prior to the US Civil war several states had such provisions and they were not challenged, which suggests that Article VI, Clause 3. might not have applied to the states, under arguments similar to those in Barron v Baltimore. That something was never challenged does not, of course, prove that it would have been upheld if challenged. Dec 20, 2021 at 16:10
  • @DavidSiegel: Also, Torcaso was aiming to be a notary public. That's not a member of a state legislature, and it's open to question whether it would make him an "executive or judicial officer" of the state of Maryland. Again, the Supreme Court saved themselves the trouble of sorting that out. Dec 20, 2021 at 17:19
  • @Nate Eldredge Quite true, and if a future case involved someone running for the legislature or Governor in NC, there might be more inclination to focus on the Art VI religious test clause. I don't think itm is as clear cut as this answer suggests that this clause applies tom the states by its own terms, or is absorbed into the 14th, although neither is clearly impossible. Dec 20, 2021 at 17:30
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Why was the constitution not changed?

Probably because there were enough politicians who didn't want to be labelled as someone who allowed atheists to take office. It doesn't matter that atheists were in fact being allowed to take office, for some politicians if they explicitly voted they would take a hit. And since atheists aren't actually being prevented from holding office it makes no real difference.

So atheists are being allowed to take office?

Yes, as Nate Eldredge pointed out, Cecil Bothwell served on the Asheville, NC city council.

Why wasn't he challenged?

Because every lawyer consulted about the challenge would have said that the clause would be struck down and the challenge would lose. If a lawyer took a case they knew was certain to lose they would be disciplined by the bar.

Why haven't atheists challenged the clause?

Because to mount a challenge there has to be actual harm. Unless someone is prevented from standing or taking office there is no basis for a challenge. And that isn't going to happen.

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  • The provision could perhaps be challenged in a collusive suit. Some person who is an atheist runs for one of the covered offices. Some other person brings a challenge under the provision, hoping to have it explicitly declared unconstitutional (although the challenger does not admit this publicly). The candidate defends on the ground that the provision is unconstitutional. Dec 22, 2021 at 16:05
  • @DavidSiegel: The plaintiff would probably need standing (although I'm not familiar with the standing requirements in NC state courts, so it's possible that wouldn't be much of a barrier...).
    – Kevin
    Dec 23, 2021 at 5:18
  • Could someone file suit pro se? Dec 23, 2021 at 6:53
  • @Acccumulation one can almost always file a suit pro se if one could file it with a lawyer. (It may not be wise, but it is usually legal.) But that doesn't address the standing issue. That means having the right to bring a suit at all, and is often limited to people with a particular interest. I am not sure about standing in this sort of case. Dec 23, 2021 at 15:24
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No court case or official regulation or attorney general's opinion has specifically held that the North Carolina provision is unconstitutional because it conflicts with Article VI, Clause 3 of the US Constitution and the squarely on point U.S. Supreme Court precedent of Torcaso v. Watkins, 367 U.S. 488 (1961), although six different cases arising in North Carolina have cited Torcaso as good law on other freedom of religion and civil rights law issues.

It is clearly unconstitutional, however, and there has been no attempt to enforce it either. There are dozens of law review articles that discuss the manner in which it is problematic to have the law still on the books, even in the absence of enforcement.

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  • Can you point us to one of these law review articles in your answer?
    – Neil Meyer
    Dec 22, 2021 at 19:25

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