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February 18, 2005
atheists need not apply
Don Herzog, Herzog: "A Christian Nation?": February 18, 2005
Should a Christian nation impose a religious test for holding public office? It's the ultimate in ecumenical or latitudinarian generosity: just require officeholders to declare their belief in God. Then you could confidently invoke the label Judaeo-Christian, without the fumbling I've noted before. Hell, you could admit Muslims and others, too. (Okay, so Buddhists would have a grievance. Boy it's hard for a Christian nation to please all the other religions. But let that go for now.)
Alas, the federal constitution rules out such oaths in Article VI, cl. 3:
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.
But we have dual citizenship: you're a citizen of your state and a citizen of the nation. So does federalism leave room for your state to impose religious tests? Some states rule out such policies. Since 1859 — that's two years before it was even a state — § 7 of the bill of rights of Kansas's constitution has said this:
The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship. No religious test or property qualification shall be required for any office of public trust, nor for any vote at any elections, nor shall any person be incompetent to testify on account of religious belief.
West Virginia's constitution (Article III, § 15) takes a similar line:
No man shall be compelled to frequent or support any religious worship, place or ministry whatsoever; nor shall any man be enforced, restrained, molested or burthened, in his body or goods, or otherwise suffer, on account of his religious opinions or belief, but all men shall be free to profess, and by argument, to maintain their opinions in matters of religion; and the same shall, in no wise, affect, diminish or enlarge their civil capacities; and the legislature shall not prescribe any religious test whatever, or confer any peculiar privileges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society, or the people of any district within this State, to levy on themselves, or others, any tax for the erection or repair of any house for public worship, or for the support of any church or ministry, but it shall be left free for every person to select his religious instructor, and to make for his support, such private contracts as he shall please.
I don't suppose anyone imagines that Kansas or West Virginia are bastions of bigoted atheism or secular humanism. That would be nonsensical. So what are they up to?
Their constitutions follow the classic liberal recipe: make the state
blind to the religions, or lack of religions, of its citizens, and you
do two fabulous things. One: you promote equality of citizenship.
No, not by levelling or homogenizing. Not for the first time on this
blog, I note that liberal equality has nothing to do with the right's
frequent scarecrow objections about envy, resentment, and the like.
Instead, equality here means ignoring irrelevant facts —
and it was a fabulous historical accomplishment, where "fabulous" means
both magical and excellent, to pull that off. Everyone used to take it
for granted that of course your religious identity was politically salient, of course
it was the business of the state to worry about such matters. Two: by
getting the clumsy and coercive paw of the state out of the matter, you
leave religion free to flourish. I'm happy to hazard the historical
generalization that countries with religious toleration and states that
refuse to tinker with establishing churches have more vibrant religious
communities than countries without such benign policies. And I'm happy
to count the modern USA as Exhibit One. So hip hip hurray for Kansas and West Virginia!
But then there's Arkansas. And South Carolina. And no doubt others, too.
Article 19, § 1 of Arkansas's constitution provides:
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.
In 1961, the Supreme Court unanimously struck down a similar provision of Maryland's constitution. That action was brought by a man appointed as notary public who was refused his commission when he refused to declare his belief in God. Decades later, two citizens of Arkansas, not elected or appointed to public office, challenged their state's provision. But the 8th Circuit ruled (Flora v. White, 692 F. 2d 53 [1982]) that they didn't have standing. That was probably the wrong call on the standing issue: federal law does extend standing to taxpayers when there are dignitary harms under the establishment clause. But even so the court dropped a footnote agreeing that the state constitutional language probably couldn't be squared with the Supreme Court's ruling in the Maryland case. As indeed it can't. There's no doubt that the Arkansas provision is unconstitutional.
So I'm surprised that no one with a better claim to standing has challenged the Arkansas provision since then. But Arkansas isn't alone in having its constitution festooned with such a blatantly unconstitutional religious test. Article VI, § 2 of South Carolina's constitution says this:
No person who denies the existence of the Supreme Being shall hold any office under this Constitution.
For citizens who might have dozed off during that part, Article XVII, § 4 says:
No person who denies the existence of a Supreme Being shall hold any office under this Constitution.
I'll leave the more theologically minded to puzzle over the difference between the indefinite and definite articles. Both clauses were struck down by a state court in 1997 (Silverman v. Campbell, 326 S.C. 208). Both remain on the books.
Does it matter that some state constitutions still have such language? You bet. Imagine how we'd react if Alabama's constitution still said what it said in 1819:
The General Assembly shall have no power to pass laws for the emancipation of slaves, without the consent of their owners, or without paying their owners, previous to such emancipation, a full equivalent in money for the slaves so emancipated.
It wouldn't be good enough to shrug and say, "well, anyway, it's not enforceable any more." Nor could you try the threadbare defense of the Confederate flag: "it stands for Southern pride and tradition, not racism or slavery." And don't bother pointing out that most people have no clue what their state constitutions say. That's true, but hardly decisive. We'd want the Alabama language off the books, pronto.
So too Arkansas, South Carolina, and whatever other states echo them should get rid of their unconstitutional disqualification of atheists. The state shouldn't be in the business of stamping unbelievers as second-class citizens. And no one should flirt with the idea that if the state repeals these religious tests, it's taking a stand against religion. What? You think there are no churches, no synagogues, no mosques, in Kansas and West Virginia? Or are you going to tell me with a straight face that without a constitutional seal of approval, they'll wither and die? Do you think I've done religion any damage by publicizing the dirty little secret of what those state constitutions say?
Sorry, but I won't buy shares in the Brooklyn Bridge, either.
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Tracked on Feb 18, 2005 7:46:06 PM
Comments
Posted by: oliver
Now that nobody is a slave or can be given the legal status of a slave, Alabama could restore that clause without harm to anyone. You'd have to read race into it to see it as denigrating to any modern class of people. Meanwhile, the clauses against atheists are loaded guns that can be fired at any time.
Posted by: oliver | Feb 18, 2005 8:06:53 AM
Posted by: john t
A man in Nevada was blocked from developing his land for recreational and resort usuage,the reason,it would damage the habitat of a particular type of bug. Not having my insectology notes near me I won't take the time to identify and recall the bug's name. A farmer in California was fined because in working his land he accidentally killed a species of rat,lest you be alarmed,not the entire species just one rat. A 1994 congressional act required smaller water tanks for toilet bowls,thereby decreasing the size of the throne upon which King Demos squats. But hope shines thru the cracks of our barricaded doors,Don Herzog shines the light of liberty into our darkened lives. Zealotry is held at bay and the Brooklyn Bridge remains unsold. Now maybe we can spread that light of liberty in other directions
Posted by: john t | Feb 18, 2005 10:05:57 AM
Posted by: David Velleman
pure whataboutery.
Posted by: David Velleman | Feb 18, 2005 11:04:56 AM
Posted by: dave
In response to a post consisting of nothing but pure whataboutery. I assumed that was the point.
Posted by: dave | Feb 18, 2005 11:25:20 AM
Posted by: David Velleman
I'm going to answer dave, in the interest of improving the quality of these discussions.
The post sets the topic. "Whataboutery" is, by definition, a diversion from the topic. Hence the post cannot, by definition, be "whataboutery". Q.E.D.
If you're not interested in the topic of the post, don't comment. If you'd like to see posts on other topics, enter your suggestions in the "Housekeeping" items. If we don't take your suggestions and you're dissatisfied, I will personally refund the entire cost of admission. (I'll even throw in the cost of setting up your own blog at blogspot.com to discuss your preferred topics.)
Now, friends, let's stick to the topic.
Posted by: David Velleman | Feb 18, 2005 11:40:49 AM
Posted by: dave
Correct me if I'm wrong here, but we're talking about state constitutional provisions that are clearly unconstitional, have been ruled unconstitutional, are subject to no current cases or controversies, are generally unknown to the public, and probably couldn't muster majority approval even if they were known to the public. My point was that this sort of thing is so far out in the weeds that it really ceases to be germane to political discussion. In Chicago, it's illegal to fly a red or black flag in a parade. Once upon a time, there might have been interesting political discussion about this law, relating to the place of communists and anarchists in the civilized body politic. However, after a century of the law being unenforced, unenforcable, and basically unknown, there's no political discussion left in it. Sorry if I wasn't clear.
Posted by: dave | Feb 18, 2005 12:37:04 PM
Posted by: miabmimiab
Dave writes: "However, after a century of the law being unenforced, unenforcable, and basically unknown, there's no political discussion left in it. "
I think the point is that just as many states did, and still do, keep racist laws on the books long after they were unenforceable, as a protest against the end of Jim Crow, and just as it would have been -- and sometimes still is -- difficult to get public support for a legislative or referendum repeal of those provisions, we also have these anti-atheist provisions. And if anyone started trying to repeal them, that person would be attacked as anti-God, *even though* most of the people attacking him would not try to argue that the provisions are in fact enforceable. In fact, it would probably spark a backlash akin to the anti-gay-marriage backlash, in which a constitutional amendment permitting religious tests would be proposed.
Posted by: miabmimiab | Feb 18, 2005 12:59:46 PM
Posted by: dave
>in which a constitutional amendment permitting religious tests would be proposed.
Exactly. Proposing constitutional amendments is exactly what happens when political issues die. It's a classic sign of surrender, as constitutional amendments essentially never pass, and only get proposed when legislative or judicial remedies are impossible. 99 times out of 100, proposal of a constitutional amendment means that the cause is permanently lost.
Posted by: dave | Feb 18, 2005 1:08:53 PM
Posted by: Achillea
Californians, I'm happy to report that our State Constitution has no such provisions.
Carry on.
Posted by: Achillea | Feb 18, 2005 1:26:58 PM
Posted by: john t
I'm predjudiced. The point was,I didn't think it needed explaining, was twofold;a] we,ve traveled the 1st amend route before. b] there are other things to be concerned with. To carry on for just a moment,the religious zealots knocking on the door bit is hold hat. As to whataboutery I think upon occasion I've spotted some here and there by the hosts. That being said I will tahe up David V's suggestion on the Housekeeping area. And I would prefer cash on the barrelhead as opposed to blog cost's if it comes to that,which I hope it don't
Posted by: john t | Feb 18, 2005 1:29:54 PM
Posted by: miab
>>in which a constitutional amendment permitting religious tests would be proposed.
>Exactly. Proposing constitutional amendments is exactly what happens when political issues die. It's a classic sign of surrender, as constitutional amendments essentially never pass, and only get proposed when legislative or judicial remedies are impossible. 99 times out of 100, proposal of a constitutional amendment means that the cause is permanently lost.
Well, state constitutional amendments, as we learned this November, can do quite well. The federal amendment may or may not pass, but the effectiveness of the backlash is pretty clear.
As DH asks -- would you say the same thing to a proposed repeal of an anti-miscegenation provision in a state constitution? or of a "no blacks in public office" provision? or of a provision allowing slavery?
Posted by: miab | Feb 18, 2005 1:30:00 PM
Posted by: Henry Woodbury
Wait a minute, this post seems familiar. Yup, here it is.
I would suggest that far more aggravating than the peculiarities of various state constitutions is the fact that if an atheist ran for president they simply couldn't get the votes, no matter what the constitution says. I suspect that Arkansas and South Carolina voters don't elect many atheists, which is probably why no state judge has been petitioned to bar them from office.
Posted by: Henry Woodbury | Feb 18, 2005 1:37:32 PM
Posted by: NeoDude
Is "Judeo-Christian" a Fundementalist cover? I mean, Judeo-Christian, are they like Jews for Jesus? Is there Islamo-Christian traditions? How about Buddeo-Christian? Judeo-Marxist traditions? Was the "Holocaust" part of the Judeo-Christian tradition?
The Myth of the Judeo-Christian Tradition in the Neocon Commentary
A Judeo-Christian Looks at the Judeo-Christian Tradition
The Rise & Fall of the Term 'Judeo-Christian'
Judeo-Christian From Wikipedia, the Free Encyclopedia
Judeo-Christian From the Artist Resource Center
Posted by: NeoDude | Feb 18, 2005 2:06:44 PM
Posted by: NeoDude
Like, who are the major Western thinkers who have explored the "Judeo-Christian" culture?
I have a sense, that it is a touchy-feely word cooked up in a PR lab to paint a multi-cultural face on the right-wing American Nationalists and their "Christ is the only way, period!" ways.
Posted by: NeoDude | Feb 18, 2005 2:20:53 PM
Posted by: dave
>The federal amendment may or may not pass, but the effectiveness of the backlash is pretty clear.
WRT the proposed gay marriage amendment, you'd be a fool to take less than 100-1 odds against it's passage. I'd lay at least 10-1 it won't reach the floor of the Senate. The votes aren't there, the states aren't there, and the demographic winds are against. So yes, the lack of effectiveness of the backlash is pretty clear.
>As DH asks -- would you say the same thing to a proposed repeal of an anti-miscegenation provision in a state constitution? or of a "no blacks in public office" provision? or of a provision allowing slavery?
I would say that if it takes more than a half hour, that legislators attempting such a repeal are wasting everyone's time and money. OTOH, wasting time and money is most of a legislator's job description, so overall I wouldn't much care one way or another.
Worrying about the symbolic impact of dead laws is a classic symptom of not understanding what politics is actually _for_.
Posted by: dave | Feb 18, 2005 2:30:54 PM
Posted by: LPFabulous
I'm totally with Dave on this one. Don's post strikes me not only as bizarre, but as a particularly offensive kind of whining. In an attempt to convey exactly how much disdain he has for the religious right, Don has presented post after post after post riddled with the most stomach-wrenching liberal condescension. If I have to hear him ask - in his disgusting mock earnestness - what a Christian nation would be like one more time, I'll be hard pressed to find any reason to keep reading this. Some of the posters here - well okay, one: David V - seem interested in discussion and debate. Herzog seems interested in rolling out liberal shibboleths until we all die of boredom or frustration.
Posted by: LPFabulous | Feb 18, 2005 6:12:20 PM
Posted by: arbitrary aardvark
Always good to see focus on state constitutions. While most lie dormant, they contain rights that the federal constitution doesn't have, they avoid the federal activist judge problem, they contain rights in paralell with the federal rights that have fallen/are falling/may fall out of favor. It's my position that any rights-based lawsuit that doesn't have state constitutional claims is malpractice.
I also don't encourage suits that rely only on state con claims; it's best to have a winning federal claim or statutory claim lurking somewhere in the suit, because it is difficult to get courts to apply meaningful scrutiny to state claims. I happened to get a BA from an illinois university which required knowing the illinois constitution - it was an awakening.
Granted, I have not had any luck in building a lucrative practice, but I continue the quest. It's meaningful work.
Posted by: arbitrary aardvark | Feb 18, 2005 6:33:15 PM
Posted by: noahpraetorius@hotmail.com
Working yourself into a lather beating dead horses...abuse of corpses...give me a break!
Posted by: noahpraetorius@hotmail.com | Feb 18, 2005 8:05:08 PM
Posted by: peBird
As long as the test is performing three miracles, I have no problem...
Posted by: peBird | Feb 18, 2005 9:53:05 PM
Posted by: Perseus
Fiddle, fiddle. Burn, burn.
Posted by: Perseus | Feb 18, 2005 10:24:05 PM
Posted by: pedro
Whining? It think it's LPFabulous who's doing the whining here. If he finds it condescending to draw attention to the articles of law in question, it is a mystery to me how he cannot find them utterly offensive towards atheists.
Posted by: pedro | Feb 18, 2005 11:31:25 PM
Posted by: Mona
Whining? It think it's LPFabulous who's doing the whining here. If he finds it condescending to draw attention to the articles of law question, it is a mystery
Uh-huh. No mystery to me, as an atheist, waiting for L2R authors to post something pushing my interest. Hasn't happened lately. And not this moot point either.
--Mona--
Posted by: Mona | Feb 19, 2005 12:12:05 AM
Posted by: pedro
As an atheist, I find this type of legislation both disturbing and contemptuous. And I don't understand why its existence and its conservative defense are supposed to be trivial and unimportant. Quite to the contrary, it is indicative of a fundamental difference between a liberal and a conservative conception of justice.
Posted by: pedro | Feb 19, 2005 12:32:24 AM
Posted by: CDC
Mona: What? You have no interest in discussing wheter or not it is still illegal to bring a whale into Oklahoma or to carry pliers in your back pocket in Texas?
Things are happening in Syria and Iran. NK has the bomb and their Looney Toon version of Caligula is running the place. Powerline and Jimmy Carter are providing entertainment. Howard Freakin' Dean is now the head of the DNC!! This place has a Hell of a collection of talent all revved up and ready to argue and there's spittoon laws on the menu.
I know, I know...refunds are available at the exits.
Posted by: CDC | Feb 19, 2005 1:47:33 AM
Posted by: Mona
CDC writes: Mona: What? You have no interest in discussing wheter or not it is still illegal to bring a whale into Oklahoma or to carry pliers in your back pocket in Texas?
No, nor whether it is criminal of me to use foul language in front of woman or child in Michigan. Other things impact me more directly, and impact people at large. I tend to focus on these larger issues, silly me.
Perhaps we will soon have a thread with comments in which the academics who host this site will sponsor reports about the academy that actually alarm those of us who get swept up in the category of "the right." In the meantime, we have a sixteen millionth thread on gays/gay rights (hey, most of us are with you L2R authors, in case you have not got that yet), another place to call creationists idiots and non-scientists, but no outlet to discuss the primarily interesting thing about these L2R bloggers, to wit: that they are academics seeking discourse with "the right."
Seek better, guys. David Horowitz and NRO among many others online provide much fodder for relevant discussion of L2R issues pertaining to the academy, fodder which you could engage to great profit. Not saying that need be your only choice of post stuff, but also not saying it should be avoided in lieu of the boring and uninspired offerings of late. Not if you want those of us who started here to remain.
Posted by: Mona | Feb 19, 2005 3:46:19 AM