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I saw the following claim in B3ta newsletter #574 (possibly NSFW), under "US Postal Service hates Atheists".

Awful, but then Atheists are not allowed to hold public office in six US states, including Texas.

Is it true that Atheists can't hold public office in Texas? I would have thought that separation of church and state would prevent any such rule being enacted.

Tom77
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    In case you're wondering, the other states are Arkansas, Maryland, Mississippi, North Carolina, South Carolina, Tennessee, and Pennsylvania. (That's a total of eight, not six). Of those, Pennsylvania and Maryland have similarly weak protection clauses (i.e. only theists are protected from religious discrimination) as described below, and the rest explicitly forbid them from holding office in their constitution. – Random832 Apr 05 '13 at 13:49
  • @Random832 Do you have references for that? – Reinstate Monica -- notmaynard May 29 '14 at 18:12
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    My source was Wikipedia: http://en.wikipedia.org/wiki/No_Religious_Test_Clause#State_law - it mentions the specific article and section numbers of each state's constitution. – Random832 May 30 '14 at 20:35
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    There are plenty of provisions that exist in state law that have been invalidated by federal laws or the US Constitution. Many get left, symbolically, or they just don't bother to change them. Mississippi finally got around to ratifying the 13th Amendment in 2013. The fact that they did not do so does not mean they were able to continue with slavery up until then, for example. – PoloHoleSet Jan 10 '18 at 15:40

2 Answers2

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From article 1, section 4 of the Texas Constitution, bolding mine:

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.

From article VI of the US constitution:

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.

The clause in the Texas consitution seems to violate the relevant clause in the US constitution.

There is also the Torcaso v. Watkins case before the Supreme Court. The Court decided:

There is, and can be, no dispute about the purpose or effect of the Maryland Declaration of Rights requirement before us - it sets up a religious test which was designed to and, if valid, does bar every person who refuses to declare a belief in God from holding a public "office of profit or trust" in Maryland. ... We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion." Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.

Though this argument is not based on article VI of the constitution I cited, the court made no decision on whether such clauses in state constutitions would violate this article.

Mad Scientist
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    State constitutions can be in dispute with the federal constitution as the latter only applies to the federal government (there are some amendments that change that in specific situations, this is almost certainly not one of them, at least historically). E.g. the "separation of church and state" (which doesn't exist, the actual phrasing of article IV just means the state shall not impose a religion on its citizens) for example never applied to the states, and indeed several states have at some point during their existence within the union indeed had a state religion. – jwenting Apr 05 '13 at 12:38
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    I leave those decisions to the Supreme Court justices, and they pretty clearly state in their decision that the States can't require any kind of religion test for public office. – Mad Scientist Apr 05 '13 at 12:53
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    Your comment right after the Texas Consitutution qwuote is not correct. Technically the Texas Consitution says "You can't ban from office someone who believes in a supreme being". That's different from "You can ban from office someone who doesn't believe in a supreme being". It certainly doesn't mean atheists are automatically banned. – DJClayworth Apr 05 '13 at 14:23
  • @DJClayworth It seems to be read by at least some to be an explicit ban on atheists in public office (see e.g. http://books.google.de/books?id=xT2t2_BFpJkC&pg=PA43&lpg=PA43&dq=texas++provided+he+acknowledge+the+existence+of+a+Supreme+Being&source=bl&ots=kMCdHKVS-1&sig=NEQt-VjyikehlFjl-w2d3n6tBxA&hl=en&sa=X&ei=OfNeUd7XKcTbtAb3roDwAg&ved=0CDIQ6AEwATgK#v=onepage&q=texas%20%20provided%20he%20acknowledge%20the%20existence%20of%20a%20Supreme%20Being&f=false ). I'm not a laywer, I don't know which interpretation of this clause is the correct one. – Mad Scientist Apr 05 '13 at 15:54
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    technically, "nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being" says that in order to be protected from exclusion from holding office on account of one's religious sentiments, one must acknowledge the existence of supreme being. Which means that someone who _doesn't_ believe in god isn't protected from being excluded from holding office on account of not believing in god. – Kreiri Apr 05 '13 at 16:03
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    @Kreiri That's exactly it. It doesn't mean you are excluded from office if you are an atheist. It means you are not protected against exclusion from office. But that's not a ban. (And nor am I saying it's a good thing). – DJClayworth Apr 05 '13 at 16:55
  • notice that it says A supreme being, not THE supreme being meaning people which believe in multiple such beings are also protected – ratchet freak Apr 05 '13 at 22:35
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    @jwenting your comment is exactly backwards. Article VI of the US Constitution specifically says that anything explicitly stated in the US Constitution shall be in effect in all states, "any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." If the state constitution contradicts an express rule in the US Constitution, the State Constitution loses. – KutuluMike Apr 05 '13 at 22:48
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    @jwenting the "separation of Church and State" is from the First Amendment, which specifically reads that "Congress shall enact no law..." and says nothing about state governments; that is separate and distinct from Article VI, which specifically says it applies to State Governments. (Of course, since ~1960, the Supreme Court has read the 5th/14th Amendments "due process" clauses as meaning that most of the Amendments language also apply to state governments, including the 1st.) – KutuluMike Apr 05 '13 at 22:55
  • @dmckee - See the Slaughterhouse Cases on Wikipedia (as well as the 14th Amendment article); the P&I clause of the 14th Amendment was pretty much interpreted out of existence. Most of the rights enumerated in the BoR have been held to apply to the States through selective incorporation of the Due Process clause (stating that no citizen shall be deprived of their rights except by due process of law). – KeithS Apr 15 '13 at 16:35
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    For more information, see http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights#Amendment_I. The two "Religious Clauses" (Establishment and Free Exercise) are fully incorporated to the States, and as interpreted, these two clauses together prevent the States and Feds from passing any law that demonstrates a preference for or against any religion. Understand that there are religious belief systems, like Buddhism, that do not recognize any supreme being, so in the Texas case it's not just a question of "militant atheism" being a religion or not. – KeithS Apr 15 '13 at 16:46
  • @MichaelEdenfield hence "the state", as in "the united states", rather than "the states" in my comment. The clause as I mentioned is explicitly relevant only to the federal government and its agencies, not to the state legislatures. – jwenting Sep 03 '13 at 10:36
  • @jwenting The clause you mentioned extends to the states by the 14th amendment. –  Sep 03 '13 at 14:09
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    @jwenting: Yep, sancho is right that the bill of rights has been incorporated against the states. Here's a reference, under the bit about the first amendment: http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights Whether or not the anti-establishment clause in the first amendment is equivalent to "separation of church and state" (I don't think it is) is a completely different question. – Ben Collins Sep 04 '13 at 14:41
  • Can a person who acknowledges themselves as the Supreme Being hold office? – user253751 Apr 26 '22 at 09:32
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No, that is not technically true.

[From article 1, section 4 of the Texas Constitution][1], bolding mine:

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.

The Texas constitution gives protection against religious discrimintation for public office, but that protection does not extend to atheists. However that is long way from saying that atheists can't hold office. It means that under the Texas constitution someone 'could' choose to exclude atheists: but in fact that does not happen. One of the reasons that it does not happen is that it would be illegal under the US constitution.

[From article VI of the US constitution][2]:

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.

Obviously this clause in the constitution discriminates against atheists - but it is not a ban.

DJClayworth
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    it would *not* be illegal under the US Constitution - especially when viewed in light of the fact that at various times states have had 'official' religious institutions *at the state level* that in no way were in conflict with the 1st Amendment which indicates *"Congress shall make no rule"* – warren Apr 05 '13 at 18:21
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    @warren - Every relevant clause of the First Amendment has been selectively incorporated to the States; see http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights#Amendment_I. The States are similarly prohibited from passing or enforcing any law that demonstrates a preference for or against a religion or family of same. Therefore, the Texas Constitution's clause requiring affirmation in a Supreme Being is unenforceable, and remains on the books for the sole reason that changing it would be more effort than it's worth. – KeithS Apr 15 '13 at 16:52
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    @warren - can you site some of those instances? Having something in place before more definitive rulings came down from SCOTUS on an issue is not necessarily an indication of what can be done now. – PoloHoleSet Jan 10 '18 at 15:38