South Carolina: where atheists can’t be governor

February 27, 2012 • 9:14 am

In clear violation of the First Amendment of the American Constitution (“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof”), it’s illegal for an atheist to be governor of South Carolina.

Here’s article 4, section 2 of the South Carolina Constitution:

SECTION 2. Qualifications of Governor.

No person shall be eligible to the office of Governor who denies the existence of the Supreme Being; and who on the date of such election has not attained the age of thirty years; and who shall not have been a citizen of the United States and a citizen and resident of this State for five years next preceding the day of election. No person while Governor shall hold any office or other commission (except in the militia) under the authority of this State, or of any other power. (1972 (57) 3171; 1973 (58) 48.)

In 1997, this law was declared unconstitutional by South Carolina Supreme Court in Silverman v. Caroll Campbell et al.

We affirm the circuit court’s holding that South Carolina Constitution art. VI, § 2 and art. XVIII, § 4 violate the First Amendment and the Religious Test Clause of the United States Constitution. The appeals from the denial of summary judgment are dismissed, and the matter remanded for further proceedings.

The plaintiff here was atheist Herb Silverman, an emeritus math professor and founder of the Secular Coalition of America. He describes his frustrating (and humorous) quest to run for governor (and become a notary, which also requires swearing allegiance to God) in a piece called,  “The candidate without a prayer,”  apparently morphing into an upcoming book with the same title. Silverman also blogs at HuffPo. (See also his piece in The Washington Post.)

Meanwhile, as far as I can determine, the illegal provision is still there in the South Carolina constitution, at least in the latest version online.  Presumably it’s awaiting appeal to the United States Supreme Court.

Here’s Silverman debating Uncle Karl in Charleston on the topic, “Does science make belief in God harder or easier?”  Giberson admits explictly (at 10:45) that God raised Jesus from the dead.  At 12:05 he says that Jesus was resurrected to atone for sin.  I would also have asked him about the virgin birth and the Immaculate Conception.

h/t: Eli

58 thoughts on “South Carolina: where atheists can’t be governor

  1. A number of states do this, actually.

    Despite what the ruling in Silverman v. Caroll was, I feel like this law must violate the 14th Amendment, not the 1st, since the 1st speaks only of what the federal government may do. Or is it common to refer to these cases as “violation of the 1st Amendment” by some kind of transitive property of Amendments?

    1. The federal constitution sets a floor. The states can grant more protections, rights, freedoms than the federal constitution, but they cannot constrain anything more tightly than the federal constitution allows. For instance, all criminal trials require the accused the right to have a lawyer. The states can also offer that same right to non-criminal trials (like civil infractions – speeding[though sometimes a criminal offense actually], jaywalking et cetera), but they may not dispense with the right of the accused to have an appointed lawyer.

      1. I’d like some evidence for that. From Wikipedia:

        “Before the enactment of the Fourteenth Amendment, the Bill of Rights protected individual rights only from invasion by the federal government. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgment by state leaders and governments, even including some rights that arguably were not protected from abridgment by the federal government. In the wake of the Fourteenth Amendment, the states could not, among other things, deprive people of the equal protection of the laws.”

        Notice that the other amendments in the Bill of Rights don’t talk about what “Congress can do.” They speak more broadly. The right of the people to keep and bear arms shall not be infringed – with no mention as to “by whom.” The logical reading of this would be that *no one* can infringe on that right. The 1st Amendment, however, says specifically that *Congress* cannot infringe on this right.

      2. I realize that my second paragraph argues something different from Wikipedia. Wikipedia is saying that the states *could* infringe on the right to bear arms. I don’t know which is true, but the point stands that, as far as the 1st Amendment is concerned, it does seem that the states were legally able to infringe on it.

      3. That is incorrect. The 1st amendment applied to *Congress*. That is why it states “Congess shall…”. In fact, several of the States were effectively theocracies at the time of the Constitution’s signing.

        It was, in fact, and as others have stated, the 14th amendment that applied the 1st amendment to the states. Or, more accurately, the 14th amendment combined with some later Supreme Court rulings.

        After the Constitution’s signing, the idea of democracy and of individual sovereignty really started to spread through out the states and after only a couple of decades, most states had contitutions that enfored the same type of protections that the Federal constitution had.

    2. The 14th Amendment is what makes the federal constitution, including the 1st Amendment, apply to the states. So the court is correct to find that the state constitution violates the 1st Amendment, and you are correct that the 14 Amendment is what makes the 1st apply to the state of South Carolina.

  2. Herb spoke to our UU congregation in Columbia, SC, a few years ago, talking about his efforts and victories. Delightful speaker & a great person.

    Also, nice to see that College of Charleston was the host of the debate mentioned above. It’s a state school, where my son’s a senior. There are plenty of liberal and well-educated thinkers in South Carolina, who would strongly disagree with Rick Santorum’s latest gaffe (confession?) that he feels it would be better if fewer Americans went to college.

  3. They can take that law off the books and it won’t change anything. Almost nobody in SC would vote for an atheist anyway.

    I would kind of like to see it tested and smacked down, though…

  4. I would also have asked him [Giberson] about the virgin birth and the Immaculate Conception.

    One small matter: The ‘immaculate conception’ is about Mary’s conception (not Jesus’) and is generally only of interest to Catholics. Protestants would generally reject it (if they even know the doctrine).

    1. The Immaculate Conception is one of those purely spiritual “miracles” (like the Transubstantiation) that make no actual difference in anything measurable.

  5. I think a number of states have such provisions in their constitutions, which are now unenforceable. I don’t know if there is any legal requirement that they be removed, so the fact that they remain doesn’t mean anything.

    1. They do mean something if, when someone brings up removing them, there is a great hue and cry of protest.

      Most archaic laws remain on the books because it’s a bother to bother to remove them. Laws about where to graze your sheep in the village square or walking in front of auto-mobile machines to warn the horses remain due to lethargy and obvious quaintness. But if there’s a law in the constitution or a city ordinance regarding whether or not black people can stay overnight, there would be little or no backlash if some politician wanted to make a show of removing it.

      Not so with laws against atheists. People usually scream bloody murder. An atheist has no reason to be moral. Yes, they (usually) know it can’t be enforced. But they want it on the record. They want it in the historical record. They don’t want it removed. The point is still valid, they think. They symbolize something important.

      In which case, I think those laws do mean something. If they didn’t, there wouldn’t be the resistance.

      1. What I meant by “doesn’t mean anything” is that the fact that the provision remains doesn’t mean that the case is under appeal to the US Supreme Court as Jerry inferred. That was 15 years ago, after all.

    2. Yes, Maryland’s constitution has an old religious test to be a juror.* A lot of states have these old provisions. Its always the same issue: a legislator must propose a wording change and get it passed before the unconstitutional bit gets removed. Until then, its just unenforceable.

      *Maryland Declaration or Rights, Article 36: “…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.”

      1. “will be held morally accountable for his acts”

        What is ironic is every criminal that comes before the court operates under this belief, yet it didn’t prevent him from his criminal behavior.

        1. Sorry, which politician were you talking about there? The one with the criminal behaviour? From the characteristics, I can’t get it down to less than a few millions of politicians.

  6. Even if things exist “on the books”, they’re unenforceable once the Supreme Court has declared them to be unConstitutional.

    There were a lot of anti-sodomy laws that remained in criminal codes for a long time after the Supreme Court overturned them. But they couldn’t be enforced. Just meaningless words on paper.

    But it takes an act of the state legislature to remove such items from the lawbooks. And lawmakers for some funny reason are reluctant to do so.

    Every once in a while, a reporter will do a story about crazy laws still on the books of various states. This is in that same vein.

    Of course, the practical fact of the matter is that you can’t be anything other than a professing and practicing Christian — preferably of the Southern Baptist type — and get elected to any office in South Cackalacky. Or North Cackalacky. Or Alabama. Or Mississippi. Or …

  7. The “No Atheist” law is even more flagrantly in violation of Art. VI of the Constitution:

    “…no religious Test shall ever be required as a Qualification to any Office or public trust under the United States.”

    I think the lawyer-types will tell us that the 14th Amendment puts the states “under the United States.”

    1. Actually, both the 1st and 14th Amendments are irrelevant in this case. Here’s the full text of Article VI, Paragraph III:

      “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.”

      As you can see, the “no religious test” provision has applied to the states from the very beginning, even before the 1st and 14th Amendments.

  8. Are the words “the Supreme Being” defined in the legislation or have they a technical meaning which has been judicially recognised? It seems a strangely ambiguous term to use when clearly what was intended was the Judeao – Christian God. However, if so, should “the” not have been written “The”?

    1. Xenu beateth Jesus down with space lazers when the latter tried to ascend to heaven, so it was clearly intended for Scientology to seize power in South Carolina.

    2. There was a case in Washington State a few years back where some small-town state legislator wanted to introduce a bill requiring all acts of the legislature to recognize “the Supreme Ruler of the Universe”. There was considerable debate at the time whether she meant Emperor Palpatine or Ming the Merciless.

      1. Or it could have been The One Who Holds, The Worshipped One, The Lady Of The Grape Vine,
        The Absolute, Atum The Androgynous, The Lady Rainbow, The August Male And Female,
        The Iron Crutch, Queen Mother of the West,
        The Minister Of Thunder, The Black Misery,
        The Radiant, The Lord of the Night Sky,
        The Protector of Dead Souls, The Dark One
        Donn, Shoki the Demon-Queller, Lord of the Smoking Mirror, The Ancient Foundation, Instructor Of The World, Lord of Duality, The
        Lord Of Heaven, The Shining One, Deva,
        The Messenger Of Heaven, The Horned One,
        The Great Spirit, Lord Of The Underworld,
        The Enlightened One, The Maker Of All,
        The Moon Spirit, Mother Earth, Divine Youth,
        The Jade Emperor, The God Of Darkness,
        The Maintainer, The Destroyer, The Great
        Mother, The Shadowy One.

        Should keep American lawyers in a job for the next few years.

          1. And having been on the receiving end of Uganda’s Customs and Excise version of “fun and games” recently, he was probably considered perfectly normal at the time.
            Last King of Scotland? Oh, it would have been fun to watch him try to make it the length of Sauchiehall Street carrying a placard claiming that. “Fun” in a very “Roman” and “gladiatorial” sense of the word.

  9. “No person shall be eligible to the office of Governor who denies the existence of the Supreme Being” Kim Jong-Il? The Flying Spaghetti Monster? Allah? Yahweh? How about Ceiling Cat?

  10. Sadly, we have a similar situation in Tennessee.
    “Article IX [of the Constitution] lists three groups of people who are barred from various privileges:
    Ministers of any religion may not sit as legislators because they “ought not be diverted from the great duties of their functions.” (Section 1)
    Atheists may not perform any office in the government (Although Section 4 of Article I, banning any religious test for any “office of public trust” seemingly would make this hard to enforce) (Section 2)
    Anyone having anything to do with a duel may not hold any “honor or profit” under the state’s government and is liable to be punished otherwise (Section 3)
    It should be noted that the restrictions on ministers and atheists have been deemed to be unenforceable due to the interpretations of the Supreme Court of the United States with regard to the First and Fourteenth Amendments to the United States Constitution.”

    1. Hmmm, “Dorothy Taylor” was my mother’s maiden name. She’s in Memphis. I would be wondering if you were my mother, except she wouldn’t be hanging out on an Evolution site. She doesn’t believe.

  11. They don’t automatically get removed from the text of the constitution after a court ruling. I don’t think the state is appealing, they just aren’t going to amend the state constitution to comply with the court ruling. They can’t enforce it either.

  12. Since this provision of the law is unconstitutional and has been ruled so, and since the U.S. Federal Constitution trumps state constitutions, isn’t it null and void in practice? It need no more be honoured than laws that have been disregarded as impractical for years, such as the notorious New Jersey statute that calls for all automobiles driving at night to be preceded by a man carrying a lantern, isn’t that so?

  13. From the Texas State Constitution:

    Sec. 4. RELIGIOUS TESTS. 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.

  14. I have absolutely no problem with the doctrine of immaculate conception. I agree completely that Mary (if she actually existed, which I doubt) was conceived free of original sin. I believe every human being is conceived free of original sin because there is no original sin.

  15. Excellent comments on the differene between what’s on the books and whether they are enforced. Once ruled unconstitutional they are unenforceable. No need to remove them. I wonder how many thousands of unenforceable laws are still on the books?

  16. Americans can be arrested and jailed for breaking unconstitutional laws.

    While it is true that the Supreme Court technically invalidated all state laws concerning “crimes against nature” in Lawrence v. Texas (2003), the fact remains that state sodomy laws continue to target LGBT Americans.

    In practice, the unconstitutionality of state laws means you can be arrested and jailed, then have the charges dropped.

    The work still remains to remove unconstitutional state laws.

  17. I’m a bit disappointed by the lack of faith that the American audience express in their population.
    If a pretty conservative (small ‘c’ and large ‘c’ ; trust me, I grew up near there) central England town can re-elect a professed atheist 4 times in succession in Victorian Britain, on the explicit point of whether or not an atheist ought to be allowed to sit in Parliament … well is America really that god-dominated?

  18. Reader Dave Ricks has had trouble posting here, and asked me to put this comment up on this thread:
    I’m sorry, I don’t mean to single anyone out, because I’m concerned more about group dynamics, so I’m only quoting from comment 8 for example. That comment said that state sodomy laws are “unenforceable” and “just meaningless words on paper” after the Supreme Court “overturned them” and “declared them to be unconstitutional” (meaning Lawrence v. Texas, 2003). But you can click this link to see how a Louisiana driver’s license identifies a person as a SEX OFFENDER in big red letters for being convicted of Crime Against Nature by Solicitation.

    That web page also says a person convicted under the sodomy law “must disclose the fact that they are registered as a sex offender to neighbors, landlords, employers, schools, parks, community centers, and churches. Their names, address, and photographs appear on the internet.”

    Fact is: Louisiana still punishes Crime Against Nature by Solicitation more harshly — and with far more stigma — than straight sex solicitation, by using a state sodomy law. And I cited Louisiana as one example; other states still use their sodomy laws.

    Funny thing is: I’m straight, and I don’t use prostitutes, but it only takes a few Google searches and mouse clicks to learn these facts.

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