A bookkeeper named Roy Torcaso, who happened to be an atheist, refused to declare that he believed in God in order to serve as a notary public in Maryland. His case went all the way to the Supreme Court, and in 1961 the court ruled unanimously for Mr. Torcaso, saying states could not have a “religious test” for public office.
But 53 years later, Maryland and six other states still have articles in their constitutions saying people who do not believe in God are not eligible to hold public office. Maryland’s Constitution still says belief in God is a requirement even for jurors and witnesses.
Now a coalition of nonbelievers says it is time to get rid of the atheist bans because they are discriminatory, offensive and unconstitutional. The bans are unenforceable dead letters, legal experts say, and state and local governments have rarely invoked them in recent years. But for some secular Americans, who are increasingly visible and organized, removing the bans is not only a just cause, but a test of their growing movement’s political clout.
Todd Stiefel, the chairman and primary funder of the Openly Secular coalition, said: “If it was on the books that Jews couldn’t hold public office, or that African-Americans or women couldn’t vote, that would be a no-brainer. You’d have politicians falling all over themselves to try to get it repealed. Even if it was still unenforceable, it would still be disgraceful and be removed. So why are we different?”
It would be unthinkable for such “naked bigotry” against white people or Presbyterians or Catholics to go unnoticed if state constitutions still contained it, said Rob Boston, director of communications for Americans United for Separation of Church and State, an advocacy group. “Right now we hear a lot of talk from conservative Christians about their being persecuted and their being forced to accommodate same-sex marriage. But there’s nothing in the state constitutions that targets Christians like these provisions do about nonbelievers,” Mr. Boston said.
The six states besides Maryland with language in their constitutions that prohibits people who do not believe in God from holding office are Arkansas, Mississippi, North Carolina, South Carolina, Tennessee and Texas.
Mississippi’s Constitution says, “No person who denies the existence of a Supreme Being shall hold any office in this state.” North Carolina’s says, “The following persons shall be disqualified for office: First, any person who shall deny the being of Almighty God.”
Pennsylvania’s Constitution contains no prohibition, but does say that no one can be “disqualified” from serving in office on the basis of religion — as long as they believe in God “and a future state of rewards and punishments” (a reference to heaven and hell).
Article VI of the United States Constitution says no “religious test” should ever be required for federal office.
And since the Supreme Court’s decision in the Torcaso case, states have clearly been prohibited from making belief in God a requirement for public office, said Ira C. Lupu, an emeritus professor at George Washington University Law School who specializes in church-and-state issues. Mr. Lupu said of the language in the state constitutions: “Of course they shouldn’t be in there. They’re all unconstitutional. They can’t be enforced.”
But there has been no political will to rescind these articles. “Which politician was going to get up and say, ‘We’re really going to clean this up’?” he said.
The state bans have been invoked rarely since 1992, according to legal experts. In South Carolina that year, Herb Silverman, a math professor at the College of Charleston who is an atheist activist, was denied a position as a notary public. His case went to the South Carolina Supreme Court, and in 1997 he won. In North Carolina, after Cecil Bothwell, a writer, won a seat on the Asheville City Council in 2009, his opponents tried to invoke the State Constitution’s atheist ban to deny him his seat, but they soon backed down.
Organizers with Openly Secular see the bans as evidence of the quiet bigotry and discrimination faced by many atheists, agnostics, humanists and freethinkers. They point to a poll conducted by the Pew Research Center this year showing that nearly half of Americans would disapprove if a family member married an atheist.
Pew also found that 53 percent of Americans polled in April said they would be less likely to vote for a presidential candidate they knew was an atheist. Being an atheist was found to be the least desirable trait a candidate could have — worse than having cheated on a spouse or used marijuana.
The Openly Secular coalition, which includes 30 groups and was formed this year, is trying to win greater acceptance for nonbelievers by encouraging them to go public. Taking a page from the gay rights campaign called It Gets Better, the coalition has posted short video testimonies from people who declare that they are happily nonbelievers. Among those who have recorded videos are former Representative Barney Frank and Chris Kluwe, a former punter for the Minnesota Vikings.
Now the coalition plans to lobby legislators in the seven states, plus Pennsylvania, to rid the constitutions of the discriminatory language. The process of changing the constitution is different in each state, but the first hurdle will be finding legislators willing to stand up for nonbelievers.
In Maryland, one state senator has already been hearing from constituents who want the atheist ban removed. Jamie B. Raskin, the Democratic majority whip, is also a professor of constitutional law at American University.
In an interview, Mr. Raskin said the constitutional provision was inconsistent with Maryland’s history as a refuge for Catholics fleeing persecution and a haven of religious tolerance. He foresees an attempt to remove the atheist ban as part of a broader overhaul and modernization of the State Constitution. But the next opportunity for a referendum on whether to hold a constitutional convention in which changes could be made is not until 2020, he said.
Paging through a copy of the State Constitution, he said the atheist ban was only part of the “flotsam and jetsam” that needed to be wiped from the document. “It’s an obsolete but lingering insult to people,” he said.
“In the breathtaking pluralism of American religious and social life, politicians have to pay attention to secularists just the same as everybody else,” Mr. Raskin said. “If a Mormon can run for president and Muslims can demand official school holidays, surely the secularists can ask the states for some basic constitutional manners.”
But there may be some resistance from legislators who see the effort to remove the clauses as sensible, but politically and symbolically unpalatable.
Christopher B. Shank, the Republican minority whip in the Maryland Senate, said that while he believed in pluralism, “I think what they want is an affirmation that the people of the state of Maryland don’t care about the Christian faith, and that is a little offensive.”