Legacy Atheist Bans in State Constitutions a Long Recognized Problem

December 8, 2014

Todd Stiefel and the Openly Secular project have announced a bold plan to lobby legislators to repeal unconstitutional “legacy” language in seven states’ constitutions that bars atheists from holding public office. It bespeaks the growing prominence of unbelievers and “nones” in public discourse that someone now imagines that these unenforceable, but repellent, constitutional provisions might finally be swept away. The unbelieving community has long recognized that these hateful provisions exist, and that they are problematic. What is new, and welcome, is the possibility that our community finally has the muscle to demand that something be done about them.

Fifteen years ago, I editorialized against these provisions in FREE INQUIRY. And I was far from the first to note — and to decry — their existence. The editorial was entitled “Outlawing Unbelief.” It appeared in FREE INQUIRY Volume 20, Number 1, Winter 1999-2000, and is available online at https://www.secularhumanism.org/index.php/articles/2664 (FREE INQUIRY subscribers only). Here is an excerpt:

“These clauses continue to linger in state constitutions in part because they are considered unenforceable. Few reformers have felt strong need to press for their removal. Amending state constitutions is difficult and expensive; removing clauses, even unenforceable ones, that penalize unbelievers is bound to be unpopular. Why bother, one might argue, struggling toward a victory that would be at best symbolic?

“The first answer is that symbolism matters. Constitutional clauses denying full political privileges to the nonreligious (and others) enshrine bigotry in an unwelcome historical reverence. They provide rhetorical ammunition for ideologues (including many on the religious Right) who wish explicitly to deny full citizenship to those they consider infidels. Perhaps worst of all, the clauses valorize a preference for Protestant Christianity over other religious and nonreligious lifestances that is increasingly odious in a society of rapidly increasing religious diversity.

“The second answer is that, while these clauses may be unenforceable today, they may not always remain so. While they survive they are like cast-off weapons — weapons a future, more pious America might choose to recommission. Consider that the next U.S. president will probably appoint at least three Supreme Court justices. If all were strong conservatives, the result could be a high court capable of reconsidering Torcaso-and making open political discrimination against nonbelievers allowable again.

“Future religio-political conservatives will find it harder to create new constitutional language sanctioning the civil emasculation of unbelievers than to re-activate existing language long disavowed but never repealed. State constitutional clauses that align the polis with the Christian deity and deny unbelievers full access to public office or the courts are offensive and unacceptable. They must fall. It’s time more secular humanists — and others committed to fair treatment for all — said so.

“Even if they are now unenforceable, the bigoted passages in seven state constitutions that shut out unbelievers (and often unorthodox religionists) from the body politic merit repeal.”

Now here’s the interesting part. Noting a then-recent, but ultimately unsuccessful, plea by FREE INQUIRY founder Paul Kurtz, I wrote:

“Recently Paul Kurtz has called for formation of a neo-humanist coalition. Such a coalition might take explicit political action to improve the status of unbelievers in American life. Pressing to strike these obnoxious clauses could offer such a coalition a worthwhile initial project.”

Fifteen years ago, secular humanists, atheists, agnostics, and other freethinkers lacked the public stature and the organizational capacity to press this issue. Now — just maybe — we do. I wish Todd and Openly Secular the best of fortune in their lobbying. One official has already responded: Maryland state senator Jamie B. Raskin, the Democratic majority whip, has publicly stated that removal of that state’s anti-atheist provision should be included in a large slate of constitutional reforms. Given Maryland’s laws, the earliest a ballot referendum to call the required constitutional convention can go before voters is 2020.

2020 is a long time off. But it beats never. I will continue following this story as it develops.