Atheists and Agnostics Need Not Apply?

Separation of church and state – many Americans would describe this as a core American belief. In fact, Article VI, Section 3 of the Constitution says that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” However, some states have election laws requiring that a candidate believe in a supreme being. Arkansas, Maryland, Mississippi, North Carolina, South Carolina, Tennessee, and Texas all have variations of this rule still in their state codes.

A 1961 U.S. Supreme Court case from Maryland, Torcaso, found such restrictions unconstitutional, and these laws have since gone unenforced. But although Torcaso clearly rebuked such election laws, each state law has not been individually considered by the Supreme Court, so atheists might still face attempted enforcement, forcing litigation that could potentially pass summary judgment due to differences in statutory language.

For example, in South Carolina, an atheist won election to city council, and such a law was used to attempt to block his election. Though the opposition did not file a lawsuit, such a suit could have been filed, and even without winning, such a case could stall a candidate from taking office and legislating.

Had these election laws been passed in every state, their attempted enforcement would carry serious ramifications. Thomas Gore, a senator from 1907-1921 and 1931-1937, actually could have lost his Senate seat had he been openly atheistic rather than hiding it, because Torcaso had yet to be litigated. The Democratic Party, which then had half the votes in the Senate, might instead have had a minority during the height of the Great Depression.* Post-Torcaso, we could have seen attempts to enforce against Representative Barney Frank – potentially preventing Dodd-Frank from coming into existence. We may also have seen enforcement attempts against Representatives Pete Stark, the first openly atheistic congressman, and Kyrsten Sinema, the first openly bisexual congressperson, thus not only preventing legislation, but also preventing progress in Congress’s diversification.

 

* Democrats were technically already down, but Henrik Shipstead of the Farmer-Labor party was a consistent liberal vote, causing a de facto 50-50 split.