‘No Religious Test’ Tested

Attack On North Carolina Candidate Focuses Attention On State Constitutional Bans On Nonbelievers In Public Office

While working as a journalist covering municipal government in Asheville, N.C., Cecil Bothwell carefully watched members of the city council and came to a simple conclusion: He could do their job. 

“As a reporter, I covered local government issues from 1993 to 2007 and felt I had a pretty good handle on the important issues here,” Bothwell said.

Last year, Bothwell decided to test his thesis. He mustered a corps of grassroots volunteers and launched a campaign for a seat on the city council. Running as an unabashed progressive, Bothwell stressed themes like environmental stewardship and good government. 

It wasn’t an easy campaign. During the race, Bothwell’s opponents attacked him for a critical book he authored about Billy Graham and assailed his religious beliefs – or more accurately, his lack of them. Bothwell opponents pointed out that in his book, The Prince of War: Billy Graham’s Crusade for a Wholly Christian Empire, he spoke frankly about his own dearth of faith, writing, “I don’t believe in supernatural beings of any stripe….”

When Bothwell won anyway, his opponents refused to accept it. They began arguing that Bothwell was ineligible to take office, pointing to a provision in the North Carolina Constitution that bars atheists from holding public office.

The language is indeed there. Article VI, Section 8 of the North Carolina Constitution bars state office to anyone who is ineligible to vote, anyone who has been convicted of treason or any other felony and “any person who shall deny the being of Almighty God.”

The provision dates to 1868 and is an adaptation of language that appeared in the 1776 version of the North Carolina Constitution. The original wording was actually more restrictive, barring from office any “person who shall deny the being of God, or the truth of the Protestant religion, or the divine authority of either the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State.” (It also stated that “no clergyman, or preacher of the gospel, of any denomination, shall be capable of being a member of either the senate, house of commons, or council of state, while he continues in the exercise of his pastoral function.”)

Antiquated language barring atheists from public office does exist, but that doesn’t mean it’s still in force. In fact, it’s not. A 1961 U.S. Supreme Court decision struck down such “religious tests” for public office. The case, Torcaso v. Watkins, was brought by a Maryland man, Roy Torcaso, who refused to take a religious oath as a condition of becoming a notary public.

Article 37 of the Maryland Constitution holds, “[N]o 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….”

Maryland’s highest court, the Court of Appeals, initially ruled against Torcaso in 1960. The Maryland court pointed out that the common law often excluded atheists as witnesses in court and observed, “[W]e find it difficult to believe that the Supreme Court will hold that a declaration of belief in the existence of God…is discriminatory and invalid.”

Elsewhere, the court equated atheism with “the denial of any moral accountability for conduct” and wrote, “The historical record makes it clear that religious toleration, in which this State has taken pride, was never thought to encompass the ungodly.”

But if the judges on Maryland’s highest court smugly thought their opinion would survive U.S. Supreme Court scrutiny, they were in for a surprise. In a unanimous opinion, the high court ruled one year later that the Maryland provision violates the First Amendment’s guarantee of religious freedom.

“This Maryland religious test for public office unconstitutionally invades the appellant’s freedom of belief and religion and therefore cannot be enforced against him,” declared Justice Hugo Black on behalf of the court.

Black noted the irony of religious tests, writing, “Indeed, it was largely to escape religious test oaths and declarations that a great many of the early colonists left Europe and came here hoping to worship in their own way. It soon developed, however, that many of those who had fled to escape religious test oaths turned out to be perfectly willing, when they had the power to do so, to force dissenters from their faith to take test oaths in conformity with that faith.”

Black’s ruling cites earlier high court decisions upholding church-state separation. Employing language found in the landmark 1947 case Everson v. Board of Education, Black observed, “We repeat and again reaffirm 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.”

The move invalidated Maryland’s provision and language like it in seven other state constitutions – Arkansas, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee and Texas. (It also had an interesting side effect in Maryland: In 1965, the Maryland Court of Appeals struck down a requirement that jurors must swear belief in a Supreme Being.)

So no one cares about this issue any more, right? Not quite. As the controversy over Bothwell illustrates, some people are having a hard time, even in 2010, accepting the fact that public office is open to everyone, regardless of religious opinion.

At the same time, the flap over Bothwell, which went international thanks to the World Wide Web, has shined light on a relatively obscure area of church-state law and reminded Americans of our theocratic and sometimes intolerant past: Although considered a relic today, religious tests for public office were once a common feature in many state constitutions. At the time the U.S. Constitution was drafted, 11 of the 13 original colonies maintained some type of religious qualification for voting or holding public office. (Virginia and New York were the exceptions.)

For example, Delaware’s constitution of 1776 required all officeholders to swear an oath professing belief in “God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.”

Massachusetts’ constitution of 1780 required elected officials to profess that “I believe the Christian religion, and have a firm persuasion of its truth….”

Provisions like this gradually fell by the wayside as the separation of church and state took hold. Many were removed as state constitutions were updated and antiquated provisions were trimmed away.

Other provisions that sound jarring to today’s ears persist in some state constitutions. Tennessee still bars “Ministers of the Gospel” from serving in the state legislature, a provision that was invalidated by the U.S. Supreme Court in 1978’s McDaniel v. Paty. In Arkansas and Kentucky, you can be barred from holding office if you’ve fought a duel or helped arrange one.

While many states long ago scrubbed dated provisions like these, a few holdouts remained when it came to religious tests. The provisions were usually not enforced until Maryland officials decided to go to the mat in the Torcaso case.

The next major flare-up was in 1990, when Herb Silverman, a math professor at the College of Charleston, decided to challenge South Carolina’s religious test. Silverman ran for governor as a write-in candidate, garnering a few hundred votes. A state court declared his case moot since he never had a realistic chance at winning.

Silverman regrouped and in 1992 applied to become a notary public. On his application, he crossed out all references to God. Silverman expected that state officials would bow to the Torcaso ruling and give him the notary commission. Instead, they decided to fight, and his application was denied.

Backed by the American Civil Liberties Union, Silverman filed suit. He prevailed in state court, and in May of 1997, South Carolina’s Supreme Court affirmed that ruling.

In Bothwell’s case, he believes some of his political opponents are using the issue of his non-belief simply because they don’t like his political views and want to overturn the election results.

Bothwell made a name for himself in the community by writing a string of investigative articles about former Sheriff Bobby Lee Medford, who eventually became the target of a wide-ranging corruption investigation. Federal officials asserted that Medford pocketed more than $300,000 in bribes and oversaw a multi-million dollar gambling empire.

A jury agreed. Medford was convicted and sentenced to 15 years in prison.

“I am widely credited with putting him behind bars through my investigative reporting,” Bothwell told Church & State, “and his allies do not much like me.”

During the campaign, a group calling itself “Common Sense in Government” circulated a flier titled, “Who is Cecil Bothwell?” It attacked Bothwell’s book on Graham, pointed out that Bothwell does not believe in a supreme being and concluded, “Bothwell is too radical to be running the city of Asheville.”

A second flier again singled out Bothwell’s atheism and, for good measure, accused him of being a socialist, too.

Asheville voters were not swayed by the mud slinging. On election night, Bothwell, running in a field of six candidates, took third place with 5,899 votes – enough to land him a seat.

His opponents immediately came out with guns blazing.

“I’m not saying that Cecil Bothwell is not a good man, but if he’s an atheist, he’s not eligible to serve in public office, according to the state constitution,” Bothwell opponent H.K. Edgerton told the Asheville Citizen-Times.

Edgerton also told the Associated Press, “My father was a Baptist minister. I’m a Christian man. I have problems with people who don’t believe in God.”

Edgerton, a right-wing African American, is best known for promoting the peculiar brand of historical revisionism common among neo-Confederates. He runs a Web site called “Southern Heritage 411” and describes himself as “a black Confederate activist who works tirelessly to bring the real truth of our heritage to people of all races.”

The site notes that Edgerton “has walked thousands of miles carrying his large Confederate Battle Flag through cities and towns and down country roads. He speaks at venues all over the South exposing the many myths of Yankee history and setting the record straight regarding blacks’ role in the history of the South.”

During the campaign, Bothwell was also dogged by a right-wing group called the Carolina Stompers, which has since been asserting that his election is somehow invalid. Bothwell was sworn in Dec. 8 (with a secular oath), and his critics have continued making vague threats about filing a lawsuit; however, no legal action has yet occurred.

All of this could have been avoided if the federal constitution had made it clear that all forms of religious tests at the federal and state level are illegal.

The U.S. Constitution does contain a provision barring religious tests in Article VI, but most scholars agree it is limited to federal office. The language states, “[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Article VI was championed by Charles Pinckney, a South Carolina delegate, who managed to get it added to the document with little objection. (Only the North Carolina delegation voted no.) But that quickly changed when the draft Constitution was submitted to the states for ratification, and a mini-firestorm erupted.

In their book The Godless Constitution: The Case Against Religious Correctness, Cornell University professors Isaac Kramnick and R. Laurence Moore recount the vocal opposition to Article VI in some states.

A delegate to Massachusetts’ ratifying convention fretted that the electoral door would be open for “a papist or an infidel.” During the North Carolina convention, a delegate warned about “pagans, deists and Mahometans” seeking office. A South Carolina newspaper raised the possibility of pacifistic Quakers taking over the reins of government.

One Virginia activist even implored his state’s delegates to rewrite Article VI to state that no other religious test be required other than requiring officeholders to swear a belief in the “one only true God, who is rewarder of good, and the punisher of evil.”

Article VI’s defenders blasted back. James Madison cited Article VI as one of the highlights of the Constitution in the Federalist Papers, writing that the document made public office open to all of merit “without regard to poverty or wealth, or to any particular profession of religious faith.”

Baptist preacher John Leland added a clerical defense of the concept.

The fiery Leland had opposed religious tests successfully in Virginia, observing, “If a man merits the confidence of his neighbors in Virginia, let him worship one God, twenty Gods or no God. Be he Jew, Turk, Pagan, or Infidel, he is eligible to any office in the state.”

Article VI remained in the Constitution, further proof, Kramnick and Moore argue, that the framers wanted to create a secular government and sever the tie between religion and state at the federal level.

In Bothwell’s case, some of his critics on the right have culled this history selectively, pointing out in articles published online that since Article VI applies only to federal office, North Carolina can deny him the seat he lawfully won. They are apparently unwilling or unable to accept the reality of the Torcaso ruling.

This is perhaps not surprising, as some Religious Right activists still pine for the bad old days. David Barton, a pseudo-historian in Texas who makes his living arguing that the United States was founded to be a Christian nation, has asserted in speeches that provisions like the one found in Delaware’s 1776 constitution are evidence of the nation’s Christian heritage, holding their bigotry up as a good thing, something to strive for today.

TV preacher and Christian Coalition founder Pat Robertson has expressed similar views. In his 1991 book The New World Order, Robertson asserted that Christians and Jews are “better qualified to govern America” than Muslims, Hindus and atheists.

But despite the longings of the Religious Right, legal experts at Americans United say it’s unlikely our nation will ever see a revival of religious tests for public office.

“North Carolina’s provision is a dead letter, and I am confident that any attempt to apply it would be quickly shot down by the courts,” Ayesha N. Khan, AU legal director said. “These provisions are bigoted anachronisms, and our nation is a better place for having abandoned them.”