May North Carolina Disqualify Officeholders Who Deny the Existence of God?

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 dupuisj@students.charlottelaw.edu.

Make your opinion known in our poll below. Feel free to elaborate in the comments section.

3 Responses to May North Carolina Disqualify Officeholders Who Deny the Existence of God?

  1. Your argument about being denied office due to being atheist is correct.

    Your argument about the North Carolinian Constitution being in violation of the US constitution is categorically false. Read the text:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

    This has nothing to do with a state constitution, or or any state regulation; in fact, it only prevents the US Federal government from establishing a national religion, and explicitly prevents Congress from interfering with a state legislatures in topics of religion.

    • Erik Schalburg says:

      Article VI Section IV does specifically make this unconsitutional: “but no religious test shall ever be required as a qualification to any office or public trust under the United States.”

    • Jordan Dupuis says:

      Steve:

      Your argument that the First Amendment only applies to the Federal government is incorrect.

      The Establishment Clause – “Congress shall make no law respecting an establishment of religion…” – does not mean that Congress cannot interfere with state legislatures in topics of religion. Rather, the Free Exercise Clause – “Congress shall make no law … prohibiting the free exercise thereof…” – prevents governmental interference with an individual’s rights to believe and participate in any religion.

      When the Bill of Rights was ratified in 1791, it was only applicable against the Federal government, meaning the United States could not violate those rights granted through the first ten amendments. Since the ratification of the Fourteenth Amendment in 1868, the United States Supreme Court has incorporated several of the Amendments in the Bill of Rights as applicable against the states. The Supreme Court incorporated the Free Exercise Clause in 1940 when it decided Cantwell v. Connecticut, and the Court incorporated the Establishment Clause in 1947 with its decision in Everson v. Board of Education.

      When the Supreme Court ruled that Maryland’s constitutional provision requiring a statement of belief in the existence of God was unconstitutional in Torcaso v. Watkins, the Court cited Everson and held that the provision violated the First and Fourteenth Amendments. The Court stated

      that neither a State nor the Federal Government can constitutionally force a person “to profess a belief or disbelief in any religion.” Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.

      When the Supreme Court finds that a law or constitutional provision is unconstitutional, similar laws and provisions are considered void because of the Supremacy Clause – the Constitution is the Supreme Law of the Land and state law is trumped. Since the First Amendment now applies to the states, North Carolina’s disqualification provision is unconstitutional in light of Torcaso.

      It should also be noted that the freedom to exercise includes the freedom to not exercise.

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