You probably know that atheists are the least-trusted minority in the United States. What you might not know is that discrimination against nonbelievers is still institutionalized. When an atheist decides to run for office, he or she must overcome more than voters’ prejudices; several states have laws specifically prohibiting nonbelievers from running for public office. Often, states keep old laws on the books in spite of specific legal rulings declaring them invalid.
When presented with examples of anti-atheist laws, it is often argued that such laws are unenforceable and therefore harmless. The Supreme Court has famously invalidated any religious test for public office, and the No Religious Test Clause of the Constitution is well-known. Taken at face value, those two items would seem to solve the problem. But as the Republican National Committee recently discovered, simply saying discrimination is gone doesn't actually make it true. The fact is, pro-theism legal codes continue to make life hard for skeptics, and several states deserve special mention for their efforts.
Arkansas tries extremely hard to let atheists know exactly how inferior they are. Per the Arkansas Constitution, atheists are not only prohibited from running for office, but also are excluded from testifying as a witness in any state court. The reasoning: "competence." That’s right, if you don’t believe in the Big Guy upstairs (or any other accepted deity), you're fundamentally unable to give appropriate input as to the truth of anything. In 1928, atheist Charles Smith, on trial for blasphemy (another terrifying freedom in the eyes of the faithful), was prevented from testifying on his own behalf.
Atheists won a significant ruling in 1961 when Maryland resident Roy Torcaso sued for the right to be appointed as a notary public. At the time, the Maryland Constitution required from public officeholders "a declaration of belief in the existence of God," and Torcaso, an atheist, refused to make such a statement. The case was repeatedly appealed, and in Torcaso v. Watkins, the U.S. Supreme Court found Maryland's religious test in violation of the First and Fourteenth Amendments. However, the Court declined to refer to the No Religious Test Clause, instead framing the decision in terms of free speech. Whether the clause applied to the states was left unclear.
The fact that discriminatory laws still remain on the books at the state level is a powerful reminder to nonbelievers. It's a reminder of an ancient intolerance for those who dare to ask for proof, and an insult to any citizen today who thinks he or she deserves the same rights as every other American citizen. If you're still having trouble seeing how insulting this is, replace atheists with another minority. If, for example, a state preserved pro-slavery laws in its legal code and declined to repeal them by the reasoning that the law has been declared "unenforceable" by a higher court, people would still be rightfully insulted.
But the threat is more than just an idle reminder of yesterday's intolerance; our legal system is forever under a slow process of revision and explication. Precedence does not mean permanence; activist judges are very much a part of the American judicial landscape. As we saw with 2010's Citizens United ruling, our courts are willing to invalidate decades (in this case, a century) of legal precedent if the argument is persuasive enough. Add to that the reemergence of nullification threats, and you've got a real opportunity for states to officially discriminate against their own non-believing citizens.
Outright nullification isn't the only way states can subvert Supreme Court rulings like Torcaso. Contrary to popular belief, the civil rights acts of the 1960s did not end racism. In fact, many states still have Jim Crow laws on their books — and sadly, some were passed after the civil rights battle was thought to be "won." So simply pointing to Torcaso or to Article VI is by no means actually a solution to the problem.
South Carolina is another state that decided atheism was just too dangerous for its notaries public. In 1992, former gubernatorial candidate Herb Silverman was denied the opportunity to become a notary after crossing off "So help me God" from his oath of office. Silverman filed suit against South Carolina’s Governor and Attorney General, and the state Supreme Court eventually found sections of South Carolina's constitution unenforceable.
You'd think it would end there, but one Carolina wasn't about to be outdone by the other. In 2012, self-described post-theist Cecil Bothwell was elected to the Asheville, N.C. city council. Predictably, his non-belief was used against him during the campaign. Allegations of godlessness have made several recent appearances as a campaign weapon in North Carolina politics. In 2008, Sen. Elizabeth Dole (R), running for reelection against Kay Hagan (D), ran an infamous television ad describing her opponent as “godless.” The ad, which quickly drew an intense backlash, is widely believed to have helped Hagan win. Hagan took great offense to the allegation, presumably because she (a) is a practicing Presbyterian and (b) knew the charge, if unanswered, would render her unelectable. (To atheists, for whom “godless” is descriptive, not pejorative, the entire issue seemed ridiculous.)
Bothwell won the council race, but his fight wasn’t over. Following the victory, H.K. Edgerton, former president of the Asheville NAACP, publicly argued that Bothwell should not be allowed to serve. Citing North Carolina’s constitution, Edgerton warned of the legal repercussions of installing an openly-atheist council member. Again, even in the face of Torasco, Silverman, and Article VI, paragraph 3, atheists are still less-than-equal when compared to believers.
So the next time you hear someone argue that laws discriminating against atheists are simply harmless relics of ages past, you'll know how to reply: anti-atheist laws are still being used to threaten and intimidate nonbelievers who would seek to serve. They need to be repealed.