Saturday, January 27, 2007

Screw Article Six

Sorry, atheists - you're officially barred from holding office in my state. Or eight others, for that matter.

That's right, under the Constitution of North Carolina and of eight other states, atheists are forbidden to hold office by the State Constitution. In Arkansas, atheists can't testify in court. And in Massachussets, only Christians are entitled to equal protection under the law.

It's remarkable that only six of the nine states - Arkansas, Mississippi, the Carolinas, Tennessee, and Texas - are traditionally "Bible belt" states. Maryland and Pennsylvania show up. The most restrictive religious test is applied by Massachusetts. (Come to think of it, MD, PA, and MA were all religiously based colonies when they were founded, and so it should probably come as no surprise that their Constitutions reflect that.) And that the state that most people would expect to be hostile to atheists - Utah - has no such provision.

Either way, all of these state Constitutions are in flagrant violation of the U.S. Constitution's Article VI, which states that "no religious test shall be required" to hold office in the U.S. As such, they're completely unenforceable. These provisions are examples of an interesting crossroads of law, one inhabited as well by laws against cohabitation and premarital sex that exist in many a state (up until recently, NC was one). They are laws adopted in the past to reflect the cultural values of a society that are now, thanks to cultural changes, too embarrassing for states to enforce. But at the same time, repealing these laws or amending the Constitution to scrap these clauses would still strike too much of a nerve among the more traditionalist elements of the populace for it to be undertaken. Such idle laws are an interesting phenomenon - to me they serve as proof that it's a bad idea to try to legislate cultural norms.

Another thing. Thanks to judicial review, these laws would be struck down if they were ever challenged (see: NC's cohabitation law). This leads to a fun little koan: these laws are only laws until they are enforced. Then they are no longer laws. That amuses me.

There is, of course, still a practical barrier for atheists to be elected to office in many areas. (In fact, it's probably easier for an atheist to get elected in MA than in a lot of other states that don't have an anti-atheist clause in their Constitution.) But that's another discussion entirely.


Ben said...

An interesting thing about the TN Constitution. In addition to the anti-atheist clause, it has its own "no religious test" clause. Try and figure THAT one out.

Mike said...

The simple answer, Ben, is that atheism is not a religion. The word religion itself, certainly to the writers of most of those laws, implies the existence of some form of Higher Power. Just as my friend Nhan always argued that Buddhism was not a religion but rather a philosophy of living, so too I imagine most atheists would cringe at the thought of atheism being a religion.

Not that I'm defending these laws. Just saying.

Jeff, I really like the concept of laws only remaining in effect untilt they are actually put into effect. And Ayn Rand says there's no such thing as contradictions.

Ben said...

Mike, whether or not atheism is a religion, it would be a "religious test" to see whether or not one believes in a religion.


Michael said...

I thought that, in cases where state laws or constitutions conflicted with the Federal Constitution, the Federal law trumps.

Which, of course, makes these state laws null and void.

Ben, you are an attorney; any thoughts?

And on the subject of "old laws still on the books," in Michigan, if you take a dead rat to your county seat, you can get a 10 cent bounty.

Tom S. said...

So Jeff - tell me, are Christians the only ones with a GOD? How is it you make such inflamatory statements as "only Christians are entitled to equal protection under the law." is it simply your goal to irritate and incite?

Further you bring up nothing that hasn't been at issue for decades with respect to outdated Laws being on the books. I will grant you this however you clearly highlight how the JUDICIARY now has chosen to virtually override the legislature (any constitutional violations in that process???) by simply denying to enforec (or doing so selectively) any law it deems fit as not being acceptable to it. I think you should consider re-reading the CORE elements of what makes up the 3 component government we have before so quickly granting control of the the country to the Judiciary.

Jeff said...

Tom -

I said "in Massachusetts, only Christians are entitled to equal protection under the law" because the MA constitution explicitly makes that requirement. Read the link.

Also, the judiciary doesn't enforce anything. That's the executive's job. But the judiciary may review any law that directly contravenes the Constitution. Since these state amendments directly contravene the federal Article VI, they would be subject to repeal by judicial review (though the legislature still has to repeal the law - the judiciary can't do that for them).

You have a very negative view of the judiciary. Perhaps if someone passed a law forbidding you from speaking and the judiciary rightfully struck it down, you would gain an appreciation for it. It is well within the judiciary's rights to declare an unconstitutional law unconstitutional. In fact, if we are to have a constitutional democracy, it's something of a requirement.