David Waters of the Washington Post reports that Cecil Bothwell, an atheist, was elected to city council in Asheville, North Carolina, despite a provision of the North Carolina state constitution which provides that "any person who shall deny the being of the Almighty God" is disqualified from holding public office. This presents an easy question of religious freedom under the Constitution.
As Waters notes, the Constitution seems to cover this very situation. The last portion of Article VI, Clause 3 of the Constitution states:
"no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
However, because this language belongs to the original Constitution it is not directly applicable against the States. For the most part, the original Constitution operated as a restraint upon the federal government, and did not constrain the states. The same is true of the Bill of Rights, which as originally enacted prohibited only the federal government from interfering with the rights of individuals. The First Amendment begins with these words:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …."
Nor, as a practical matter, could the framers have intended to apply the Bill of Rights against the states at that time given the existence of slavery within so many of the states. If the states had been bound to respect the rights of individuals, slavery would have been unconstitutional. For example, try reconciling the language of the Fifth Amendment with slavery:
"No person shall be … deprived of life, liberty, or property, without due process of law …."
It was not until after the Civil War, after slavery had been abolished, that the country adopted the Fourteenth Amendment prohibiting the states from abridging the fundamental rights of American citizens. And it was not until 1940 in the case of Cantwell v. Connecticut that the Supreme Court actually began to enforce the principle of freedom of religion against the states.
In 1961, in the case of Torcaso v. Watkins, the Supreme Court unanimously ruled that a provision of the Constitution of the State of Maryland barring atheists from public office was unconstitutional. The Maryland Constitution stated:
"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 …."
Note that this language from the Maryland constitution is inconsistent with at least three specific provisions of the United States Constitution: the language of Article VI stating that there shall be "no religious test" for any public office, the clause prohibiting the government from making any law "respecting an establishment of religion," and the clause prohibiting the government from interfering with the "free exercise" of religion. The Torcaso case would control in the North Carolina case as well, and the provision of the North Carolina Constitution barring atheists is just as unconstitutional as the Maryland provision was.
There are many people who contend that America is a "religious nation" and that accordingly atheists may be barred from public office. Some would go even further and assert that America is a "Christian nation" – I suppose that in their view Jews and Muslims could similarly be barred from office. Both of these views are inconsistent with the language of the Constitution, the clear intent of the framers, and the decisions of the Supreme Court interpreting the Constitution.
But neither does the Constitution permit the government to be hostile towards religion. Instead, our government may neither favor nor oppose religion. Under the Constitution our government must be neutral with respect to religion. Religion is a matter that is wholly committed to individuals and private institutions. That is the true meaning of "separation of church and state."
In Torcaso, Justice Hugo Black quoted Justice Felix Frankfurther's words from a previous case:
"we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion."
Professor Huhn has taught Constitutional Law at The University of Akron School of Law for over 25 years. You may access his website on constitutional law for materials relating to his course as well as links to other sources of information on constitutional law.
{ 3 comments… read them below or add one }
I completely agree that there should be no religious test for public office, and if one accepts incorporation of the Bill of Rights against the states, this is really a no-brainer.
You ask us to “try reconciling the language of the Fifth Amendment with slavery: ‘No person shall be … deprived of life, liberty, or property, without due process of law ….’” I don’t see how there is any difficulty whatsoever. The quoted language certainly doesn’t prevent the state from depriving a person of life, liberty, or property. Rather, it simply establishes the minimal condition that such deprivations must be done with “due process of law.” “Due process of law” suggests nothing more than that that you get (1) a process of law and (2) what you are due under said law. Essentially, if the state official can point to a validly enacted law as the basis for taking your life, liberty, or property, and further show that he has complied with the law, then you have received all that the “due process” clause by its terms guarantees.
As far as the federal government is concerned, “law” consists of the Constitution, treaties, and bills passed by both houses of Congress that satisfy the presentment/signature/veto override requirements. Prior to the post-Civil War amendments, had Congress passed a bill that the President signed which said something to the effect of “All people of African ancestry entering the country shall be stripped of all rights and shall become the property of the person who imports them into the country,” I don’t think a newly arrived slave could say that they were deprived of liberty without due process of law. The law expressly provided for their deprivation of liberty, and the conditions for that deprivation as expressed in the law were satisfied. While the text of the due process clause provides an important protection of the people, namely rule of law, there is no basis in the text of the due process clause to suggest that it provides any substantive protection of life, liberty, or property, even for a complete deprivation of all liberty.
The professor's post is a no-brainer. Furthermore the Professor's provocative question is more complex than the answer offered by POL.
The pre-civil war Supreme Court would have had no problem in reconciling the Fifth Amendment with the fact of chattel slavery. Since slaves were held not to be "persons" in the Dred Scott case, they would not have been entitled to the protections of the Fifth Amendment.
Although the Court's decision in Dred Scott has rightly been condemned, it employed similar reasoning in Roe v Wade in holding that the unborn child does not qualify as a "person". The similarity in reasoning should not be surprising since abortion reduces the unborn child to a mere instrumentality, a thing to be used as one wishes, much like a slave.
Quid,
Dred Scott dealt with whether a slave could be a "Citizen." I think even slavery supporters would have wanted slaves to be considered "persons," at least for constitutional law purposes. Otherwise, slaves (or more accurately three-fifths of them) couldn't be counted toward the census as "other Persons."