In North Carolina, a recently elected non-theist councilman’s ability to hold office is being questioned due to his lack of religious belief. Cecil Bothwell, who describes himself as “post-theist,” (although as one intrepid journalist uncovered, he is listed as atheist on his MySpace page. God, I love modern reporting), already had his atheism challenged during the election campaign, by mailers referencing his lack of religious belief. He won anyway, so now a suit is being threatened:

That has riled conservative activists, who cite a little-noticed quirk in North Carolina’s Constitution that disqualifies officeholders “who shall deny the being of Almighty God.” The provision was included when the document was drafted in 1868 and wasn’t revised when North Carolina amended its constitution in 1971. One foe, H.K. Edgerton, is threatening to file a lawsuit in state court against the city to challenge Bothwell’s appointment.

[Update: H.K. Edgerton, it turns out, is a few fries short of a happy meal. See below for more information on the Confederate NAACP president.]

Article 6, section 8 of the North Carolina Constitution prohibits from office “First, any person who shall deny the being of Almighty God.” Legally, though, Edgerton’s claims against Bothwell don’t have a leg to stand on.

Article VI, section 3 of the U.S. federal constitution provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Torcaso v. Watkins held that under the First Amendment (and incorporated by the Fourteenth), states could not use religious tests — whether or not Article 6 is applicable to the states or only the federal government is technically an open issue, but also rather moot. (Actually, this brings up a question I am sure has been brought up before but do not have time to research now… If the First Amendment was, originally, intended to be as broad as it is in today’s constitutional jurisprudence, why would the Founders have found it necessary to include the religious test clause to boot?). But Torcaso found that Maryland could not actually enforce a clause from its constitution that stated, “nor shall any person, otherwise competent, be deemed incompetent as a witness, or juror, on account of his religious belief; provided, he believes in the existence of God, and that under His dispensation such person will be held morally accountable for his acts, and be rewarded or punished therefor either in this world or in the world to come.”

From the language, the Maryland constitution, unlike the North Carolina one, seems to reflect more of a concern with assuring the veracity of witnesses or jurors rather than any direct concern for religion. Because if someone does not believe they will be held morally accountable in the next world, how could they possibly be concerned with being morally accountable in this world?

Anyway, North Carolina is not alone in having unenforceable religious requirements. The state constitutions of Maryland, Massachusetts, South Carolina, Tenessee and Texas also have language in their constitutions prohibiting non-religious (or possibly non-monotheistically religious) persons from carrying out certain state functions. Texas, for instances, places a requirement on officeholders being people that “acknowledge the existence of a Supreme Being.”

But why are these obviously unenforceable provisions still hanging around in the Constitution?

Provisions like North Carolina’s tend to stay on the books because lawmakers would rather not spend time weeding out outdated laws, said Duke University Law School Professor Joseph Blocher.

“I mean there are state laws against spitting in the street,” he said. “Why spend the time?”

I find this explanation rather unpersuasive. Sodomy laws, religious test clauses, and other unenforceable statutes or constitutional clauses remain on the books in state courts because legislators don’t wish to risk publicly coming out in favor of “allowing sodomy” or “letting atheists take office.” So they let the laws molder there, pretending they don’t exist, until someone or another goes on a moral crusade and tries, once again, to breathe life back into them.

Anyone who campaigned on a platform that included removing all of the vestigial and antiquated cultural baggage from our laws would have my vote. Even if they are not enforced, leaving them on the books can and sometimes does cause an unwarranted burden on citizens who, in a bygone era, would have faced heavier discrimination. Not to mention, it’s also pretty embarrassing for the state involved.

-Susan

ETA: Wait, hold the horses. Two quotes, from different articles about the guy threatening the lawsuit, caught my eye:

“If they go ahead, then the city of Asheville and the board of elections could be liable for a lawsuit,” said Edgerton, who is known for promoting ‘Southern heritage’ by standing on streets decked out in a Confederate soldier’s uniform and holding a Confederate flag.

“My father was a Baptist minister. I’m a Christian man. I have problems with people who don’t believe in God,” said Edgerton, a former local NAACP president and founder of Southern Heritage 411, an organization that promotes the interests of black southerners.

NCAAP president in cosplaying as a Confederate soldier? That’s a new one for me. Looking now, according to Wikipedia, Southern Heritage 411 “provides Southern viewpoints such as that there was great love between the African who was here in the Southland and his master and research on Black Confederate participation in the American Civil War.”

This is not the first time H.K. Edgerton has been in the news. I think this quote on Edgerton summarizes it best:

“His elevator doesn’t go all the way to the top,” Rev. Skip Alston, executive director of the North Carolina NAACP, told a reporter recently. “It doesn’t even reach the second floor. We don’t recognize anything that he’s doing.”