Recently, there has been a lot of talk about President Obama’s alleged “assault on religious liberty” for requiring employers’ health insurance providers to cover birth control for women. The opposition claims that the government is unconstitutionally intruding on their religious liberty while the President asserts he is requiring that men and women be treated equally in respect to health insurance benefits. The discussion does raise the question of where the line dividing separation of church and state should be drawn. But what about when the government asserts that it has the power to remove public officials from office because they choose not to believe in the existence of “God?”
In January, the Clinic was presented with a question about a section of the North Carolina Constitution that disqualifies certain people from holding office, whether elected or appointed. Article VI, Section 8 of the North Carolina Constitution requires that “the following persons shall be disqualified for office: . . . [A]ny person who shall deny the being of Almighty God.”
On its face, North Carolina’s disqualification directly violates the United States Constitution’s First Amendment Establishment and Free Exercise Clauses and Article VI, Clause 4 that prohibits religious tests for officeholders. After all, freedom of religion encompasses not only the right to practice the religion of your choosing, but also the right not to practice any religion at all.
In researching this project, Clinic student Jordan Dupuis found that Pennsylvania, Arkansas, South Carolina, Maryland, Texas and Tennessee had similar provisions to North Carolina’s. In 1961, the United States Supreme Court held in Torcaso v. Watkins, 367 U.S. 488 (1961), that Maryland’s bar against nonbelievers was a violation of the First and Fourteenth Amendments. In 1997, South Carolina’s Supreme Court ruled in Silverman v. Campbell, 486 S.E.2d 1 (S.C. 1997), that South Carolina’s disqualification provision was unconstitutional, citing Torcaso.
In his research, Jordan determined that North Carolina has not recently applied the nonbeliever disqualification, if ever having applied it at all. And in 1970, the North Carolina Legislature tried to remove the section by amendment, but was unable to do so due to lack of support.
Because of Torcaso, North Carolina’s disqualification of nonbelievers has been likely rendered ineffective. While this may be the case, the best route to remedy the unconstitutional prohibition would be to strike the provision by either amending North Carolina’s constitution or challenging the nonbeliever disqualification in court. If you have any information about a government attempt to enforce this disqualification please contact Jordan Dupuis at firstname.lastname@example.org.
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