Outlawing Unbelief
by Tom Flynn

It’s often forgotten, but seven states of the Union still define atheists, secular humanists, and other freethinkers as second-class citizens. The state constitutions of Arkansas, Maryland, North Carolina, Pennsylvania, South Carolina, Tennessee, and Texas retain historic provisions that ban unbelievers-and in some cases, minority religionists as well-from holding public office, bearing witness in court, or both. The Pennsylvania and Texas constitutions go further yet, declaring their debt to “Almighty God” in their preambles.

Typical language includes Article IX, Sec. 2, of the Tennessee constitution (engagingly titled “No Atheist shall hold a civil office”): “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.”

Article XIX, Sec. 1, of the Arkansas constitution is even more exclusionary: “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.”

Article 37 of Maryland’s constitution provides 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” (emphasis added).

Article I, Sec. 4, of Pennsylvania’s constitution is more insidious: “No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust under this Commonwealth.” This dual requirement of belief in a deity and in a retributive afterlife could block adherents of numerous lifestances, even some Christians. A liberal Protestant who believes in God but not in a literal afterlife, a Buddhist who believes in karma but not in a deity, or an Orthodox Jew who believes in God and an afterlife but not in reward or punishment after death-all could be barred from public office as readily as any secular humanist if this clause were enforced.

Fortunately, clauses establishing second-class citizenship for nonbelievers are seldom enforced. In the eyes of the legal profession, they are unenforceable because they blatantly violate the separation of church and state. Yet that didn’t keep South Carolina from struggling for years to deny atheist Herb Silverman a commission as a notary public. The Arkansas anti-atheist provision survived a federal court challenge as recently as 1982. Only Maryland’s provision has been explicitly overturned by the Supreme Court, in the famous 1961 Torcaso v. Watkins decision.

These clauses continue to linger in state constitutions in part because they are considered unenforceable. Few reformers have felt strong need to press for their removal. Amending state constitutions is difficult and expensive; removing clauses, even unenforceable ones, that penalize unbelievers is bound to be unpopular. Why bother, one might argue, struggling toward a victory that would be at best symbolic?

The first answer is that symbolism matters. Constitutional clauses denying full political privileges to the nonreligious (and others) enshrine bigotry in an unwelcome historical reverence. They provide rhetorical ammunition for ideologues (including many on the religious Right) who wish explicitly to deny full citizenship to those they consider infidels. Perhaps worst of all, the clauses valorize a preference for Protestant Christianity over other religious and nonreligious lifestances that is increasingly odious in a society of rapidly increasing religious diversity.

The second answer is that, while these clauses may be unenforceable today, they may not always remain so. While they survive they are like cast-off weapons-weapons a future, more pious America might choose to recommission. Consider that the next U.S. president will probably appoint at least three Supreme Court justices. If all were strong conservatives, the result could be a high court capable of reconsidering Torcaso-and making open political discrimination against nonbelievers allowable again.

Future religio-political conservatives will find it harder to create new constitutional language sanctioning the civil emasculation of unbelievers than to re-activate existing language long disavowed but never repealed. State constitutional clauses that align the polis with the Christian deity and deny unbelievers full access to public office or the courts are offensive and unacceptable. They must fall. It’s time more secular humanists-and others committed to fair treatment for all-said so.

Even if they are now unenforceable, the bigoted passages in seven state constitutions that shut out unbelievers (and often unorthodox religionists) from the body politic merit repeal. Recently Paul Kurtz has called for formation of a neo-humanist coalition. Such a coalition might take explicit political action to improve the status of unbelievers in American life. Pressing to strike these obnoxious clauses could offer such a coalition a worthwhile initial project.