united-states constitutional-law north-carolina conflict-of-laws freedom-of-religion
How does NC&#39;s atheism prohibition fit with the 1st Amendment of the US Constitution?
<p>In 1971, the US State of North Carolina rewrote its constitution. According to <a href="https://www.ncpedia.org/government/nc-constitution-history" rel="noreferrer">this source</a>, one of the purposes of this was that &quot;Ambiguities and sections seemingly in conflict with the U.S. Constitution were either dropped or rewritten.&quot;</p>
<p>Yet, the <a href="https://www.ncleg.gov/Laws/Constitution/Article6" rel="noreferrer">NC Constitution Article VI</a> states:</p>
<blockquote>
<p>The following persons shall be disqualified for office:<br />
First, any person who shall deny the being of Almighty God.</p>
</blockquote>
<p>This seems to be somewhat in conflict with the freedom of religion nominally guaranteed by the first amendment to the US constitution, as a barrier to religious practice of community/political representatives. Is it? If not, why not?</p>

<p>In <a href="https://supreme.justia.com/cases/federal/us/367/488/" rel="noreferrer"><em>Torcaso v. Watkins</em>, 367 U.S. 488 (1961)</a>, the US Supreme Court ruled unanimously that a similar provision in Maryland's constitution violated the First Amendment and could not be enforced.  So presumably the North Carolina provision is similarly unconstitutional and unenforceable.</p>
<p>It's not clear why it wasn't removed in 1971.</p>
<p>I found references to a 2009 incident in which an avowed atheist named <a href="https://en.wikipedia.org/wiki/Cecil_Bothwell" rel="noreferrer">Cecil Bothwell</a> was elected to the Asheville, NC city council.  Opponents apparently threatened to mount a legal challenge to his eligibility under the Article VI provision.  It's not clear if they actually tried to do so, but in any event, Bothwell served his full four-year term and was then re-elected for another.</p>

<p>Not that the freedom of religion clause of the First Amendment of the US Constitution isn't relevant, but North Carolina's Article VI seems to contradict explicitly Article VI, Clause 3 of the US Constitution:</p>
<blockquote>
<p>&quot;The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.&quot;</p>
</blockquote>
<p>The latter part of this is known as the &quot;<a href="https://en.wikipedia.org/wiki/No_Religious_Test_Clause" rel="noreferrer">No Religious Test Clause</a>&quot; and it is applicable to the states not only by its own language but by the 14th Amendment to the US Constitution. I suspect that if this provision of North Carolina's constitution is ever tested in federal court, it would be overturned.</p>

<p><strong>Why was the constitution not changed?</strong></p>
<p>Probably because there were enough politicians who didn't want to be labelled as someone who allowed atheists to take office. It doesn't matter that atheists were in fact being allowed to take office, for some politicians if they explicitly voted they would take a hit. And since atheists aren't actually being prevented from holding office it makes no real difference.</p>
<p><strong>So atheists are being allowed to take office?</strong></p>
<p>Yes, as Nate Eldredge pointed out,  Cecil Bothwell served on the Asheville, NC city council.</p>
<p><strong>Why wasn't he challenged?</strong></p>
<p>Because every lawyer consulted about the challenge would have said that the clause would be struck down and the challenge would lose. If a lawyer took a case they knew was certain to lose they would be disciplined by the bar.</p>
<p><strong>Why haven't atheists challenged the clause?</strong></p>
<p>Because to mount a challenge there has to be actual harm. Unless someone is prevented from standing or taking office there is no basis for a challenge. And that isn't going to happen.</p>

<p>No court case or official regulation or attorney general's opinion has specifically held that the North Carolina provision is unconstitutional because it conflicts with Article VI, Clause 3 of the US Constitution and the squarely on point U.S. Supreme Court precedent of <em>Torcaso v. Watkins</em>, 367 U.S. 488 (1961), although six different cases arising in North Carolina have cited <em>Torcaso</em> as good law on other freedom of religion and civil rights law issues.</p>
<p>It is clearly unconstitutional, however, and there has been no attempt to enforce it either. There are dozens of law review articles that discuss the manner in which it is problematic to have the law still on the books, even in the absence of enforcement.</p>
