Getting Testy: Asheville Agitators Want To Deny Council Seat To Atheist

December 8th, 2009
By Ilana Stern
Government-Sponsored Religion, In the Courts, Religion and politics, Religion in Public Life

Part of my job here at Americans United is to correspond with the general public. Frequently I find myself engaged in answering the most basic of questions. I’m often explaining the significance of Thomas Jefferson’s letter to the Danbury Baptists wherein he coined the phrase “wall of separation between church and state.”

I also remind inquiring citizens that the Framers were careful to decisively establish our American government as secular. Religion is only mentioned twice in the entire Constitution: once in the First Amendment and once in Article VI, which mandates that no religious test shall ever be required to hold federal office.

These are among the most basic of constitutional principles, putting our first freedoms first.

Why then, are some people fighting to keep non-theist Cecil Bothwell from being sworn in as a member of the Asheville, N.C., City Council?

Article 6, Section 8 of the North Carolina Constitution reads: “The following persons shall be disqualified for office: First, any person who shall deny the being of Almighty God.”

This article puts the state constitution in direct conflict with the federal Constitution, and in cases like this, the federal Constitution always wins.

“Rights enshrined in the U. S. Constitution trump the restriction in the state constitution,” explained Bob Orr, retired state Supreme Court justice and executive director of the North Carolina Institute for Constitutional Law.

Orr is right; the courts have made it abundantly clear that religious tests violate the separation of church and state.

In 1961, Roy Torcaso was appointed to the position of notary public in Maryland. He was ultimately denied the commission and ousted from office, however, due to his refusal to declare a belief in God.

In deciding his case, the Supreme Court unanimously held that Article 37 of the Maryland Declaration of Rights, which required a “declaration of belief in the existence of God” as a qualification for “any office of profit or trust,” was demonstrably unconstitutional, violating the religious liberty clauses of the First Amendment.

“There is, and can be, no dispute about the purpose or effect of the…requirement before us,” wrote Justice Black almost 50 years ago. “It sets up a religious test which was designed to, and if valid, does bar every person who refuses to declare a belief in God from holding a public office, the power and authority of the State of Maryland thus is put on the side of one particular sort of believers — those who are willing to say they believe in the existence of God.”

Black concluded, “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.’”

This holding in Torcaso v. Watkins may as well be directly applied to Bothwell’s situation in North Carolina.

While some are clamoring for the Asheville City Council to refuse to seat Bothwell until the constitutional question is resolved, their concern is moot. A “number of federal cases that would view this as an imposition of a religious qualification and violate the separation of church and state,” explained Orr.

Bothwell himself seems to think that this controversy “could make for a very interesting court case,” but he is wrong.

That case has already been heard, and a decision has been rendered. The state of the law is clear: Christians, Jews, Buddhists, Secular Humanists and Agnostics alike are all entitled to hold public office.

Constitutionally, Bothwell must be seated. His belief, or disbelief, in a higher power is completely irrelevant to his abilities to affirm that he will “bear true allegiance to the State of North Carolina and endeavor to support, maintain and defend the Constitution of said state…to the best of [his] knowledge and ability.”

Some questions I receive from the general public involve nuanced questions about the state of the separation of church and state in this country. However, some issues are black and white; and in this situation, the Constitution couldn’t be clearer.

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