Codified discrimination against atheists

Factual Questions
1

While looking through some links reference is another thread (Politician saying 1st Amendment religious freedom does not include atheism) I came upon this gem from Article 19 of the Constitution Of The State Of Arkansas Of 1874:

§ 1. Atheists disqualified from holding office or testifying as witness.

No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any Court.

What other similar discriminatory laws are out there in the various states? Have any been tested in the courts? I read that this part of the Arkansas Constitution was challenged but the challenge dismissed for lack of standing - the plaintiff had not actually been barred from holding office and thus had no standing to sue.

Does this mean that in Arkansas somebody can sue my ass off and prevent me from testifying in my defense because of this article?

2

That is far from unique.

3

This Wikipedia article lists the seven states (Arkansas, Maryland, Mississippi, North Carolina, South Carolina, Tennessee and Texas) that have constitutional provisions banning atheists from holding office. The Wikipedia article also says the clauses are unenforceable due to the First Amendment, though I don’t know if that’s been tested.

4

Right there in your cite, Torcaso v. Watkins

5

In the other thread I said in part -

The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise .

So I guess it depends what you think “law respecting an establishment of religion” actually means. Or more accurately, what the Supreme Court thinks.

… if a law discriminates between “religion” and “no religion” in any way, to the detriment of “no religion”, then it effectively does create/promote a state religion - i.e. “not atheist”.

Others replied that “establishment” referred to the situation that only the Church of England is was the “established church” (except for Mary’s reign), the one authorized by the government and so given special status, required for holding office, etc. But a church can embrace multiple subdivisions. Would for example requiring that citizen be “Christian” escape the establishment clause, because there are multiple versions of Christianity, not one “church” or denomination? Monotheist? Higher beings? (Do some eastern religions not consider there to be any supreme beings?)

This is the sort of nit-picking that keeps lawyers earning their country-club fees and can be argued ad infinitum until some real court case arrives. Fortunately it appears that Toscano got there, and so this is stare decis, the law of the land and cannot be overturned.

6

What about the second part of Article 19:

7

Yep. that one seals the doom of any atheism laws.

8

Antonin Scalia may be dead but his spirit lives on in the current Court. And he said in a public speech that the First Amendment only protects religion; according to him, there is no constitutional protection of atheism.

9

Perhaps. But do remember that the Court can overturn its own precedent.

I do personally think it won’t be overturned, but more for political reasons. But I’m not sure I can discuss those in FQ.

10

I had assumed this,

was to be taken with tongue in through cheek.

11

This arguable only denies “hard” atheists from office and they tend to be uncommon IME.

12

To directly answer the OP question “What other similar discriminatory laws are out there in the various states?”, I quoted below from:

These are things in the Constitutions of the States. I didn’t go searching for legislation beyond the Constitutions.

Arkansas
Article 19, section 1: “No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any Court.”

Maryland
Article 37: “That 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; nor shall the Legislature prescribe any other oath of office than the oath prescribed by this Constitution.”

Mississippi
Article 14, section 265: “No person who denies the existence of a Supreme Being shall hold any office in this State.”

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

Pennsylvania
Article 1, section 4: “No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth.”
Note: Pennsylvania differs from the other states in that it says believers cannot be disqualified from holding office for his or her religious sentiments, but that is not extended to atheists.

South Carolina
Article XVII, section 4: “No person who denies the existence of a Supreme Being shall hold any office under this Constitution.”

Tennessee
Article IX, section 2: “No person who denies the being of God, or a future state of rewards and punishment, shall hold any office in the civil department of this state.”
Note: Ministers are also barred from holding office, because they “ought not to be diverted from the great duties of their functions; therefore, no minister of the Gospel, or priest of any denomination whatever, shall be eligible to a seat in either House of the Legislature,” according to article IX, section 1.

Texas
Article 1, section 4: “No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.”

13

With this current Supreme Court? Not so much.

14

Found an article which addresses the second part of my question:

I’m not so sanguine about the last sentence of that article given the current set of Supremes:

Given the application of the First Amendment to the states, it seems unlikely that even a law only excluding professed atheists from testifying would survive current judicial scrutiny.

15

On a purely practical grounds I think it’s even more unlikely a state would try to disqualify atheists from testifying in court than holding public office. What happens in criminal trials when the state prosecutor can’t compell a key witness to testify because they say they’re an atheist? How would making the court system all but inaccessible to atheists (except of course as criminal defendants) outweigh the problems it would cause to the state pursuing it’s own interests in court?

16

Article VI makes any debate on the meaning of the First Amendment in this context moot:

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.

“No religious test shall ever be required” and sentence clearly states it applies to all members of the state legislature and all state executive and judicial officers.

Some states do have the clause, but it has never been seriously challenged. And since the Supreme Court is hung up on the exact wording of the Constitution, there is no legal wiggle room for them.

Not that that would stop them…

17

According to the article I cited in post #14 there are examples of such disqualification from the 19th century, and not just for atheists but for believers in religions (Universalists are specifically cited) who do not believe in punishment in the afterlife - basically an oath is worthless if you don’t believe you will go to hell for breaking it. The article also cites that members of these religious groups were eventually able to get such disqualifications ruled unconstitutional - but not atheists.

And yes, these are arcane laws that are unlikely to be enforced from a practical standpoint but are still on the books.

18

Which brings up the lawyerly nitpicking - if an atheist cannot be a witness, could the lawyer of a defendant who professes to be an atheist then demand that none of his statements to the police be admissible, either? Confession inadmissible as a result?

19

Or if an atheist is subpoenaed to testify could they use that law to say the subpoena is unenforcable?

20

There was a case in S.C. some years ago. The person in question was a mathematician. I never met him but he was a PhD student of a good friend of mine. He applied to be a notary public and was the only one of approximately 500 applicants that year who was turned down. He sued and the state claimed that his atheism was not the reason he was refused. The state could give no other reason and he won the case. I don’t think he wanted to become a notary public; he wanted to test the law.

Ah, I found it: Silverman v. Campbell - Wikipedia. It reads, in part " The South Carolina Supreme Court, in a unanimous decision,[2] ruled that Article VI, section 2 and Article XVII, section 4 of the South Carolina Constitution—both of which state, “No person who denies the existence of a Supreme Being shall hold any office under this Constitution”[1]—could not be enforced because they violated the First Amendment protection of free exercise of religion and the Article VI, section 3 of the United States Constitution banning the use of a religious test for public office.["

Note that it was the SC supreme court that decided it and it was unanimous.