Constitutional contradictions

By Ken Burrows

Our Founders created the U.S. Constitution to be a secular document, consistent with their intent to keep religion and government separate. Its references to religion are limited to a ban on requiring a religious test for public office (Article VI) and a directive that government neither establish religion nor prohibit its practice (First Amendment). By contrast, most state constitutions depart from the Founders’ example by weaving religion into their wording.

At the extreme, and in direct violation of the federal Constitution, eight state constitutions to this day contain language requiring that one must believe in God to hold public office. The South Carolina constitution’s language is typical, stating: “No person who denies the existence of a Supreme Being shall hold any office under this Constitution.” And while such required God-belief has been properly tossed out by courts as unconstitutional when it’s been challenged, this has not led the involved states to excise the offending language from their constitutions.

The states’ ignoring of separationist principles is also seen in a more subtle but more widespread form as almost all state constitutions invoke God in their preambles. Colorado’s preamble, for example, opens with “We, the people of Colorado, with profound reverence for the Supreme Ruler of the Universe . . .” In preambles “we” is taken to imply all the state’s citizens as a group. But recent surveys by the Pew Research Center reveal that approximately 25% of Americans are religiously unaffiliated, identifying as atheist, agnostic or “nothing in particular.” Close to 40% of these “nones” say specifically they don’t believe in God. So invoking God in these preambles expresses a falsehood for a substantial percentage of “we” who do not acknowledge a “Supreme Ruler” or any other religious agent. A God-praising preamble does not speak for them, even though it is their constitution too.

Serious ramifications can ensue as a result of states’ disregard for separating religion and government. In the early 1960s Roy Torcaso was denied a notary public appointment because, as an atheist, he refused to state belief in God as required by the Maryland constitution. Two tiers of courts rejected his claim that his constitutional rights were being violated, but a unanimous Supreme Court ultimately sided with Torcaso, with Justice Hugo Black writing that “neither a State nor the Federal Government can constitutionally force a person to profess a belief or disbelief in any religion.” More recently, in the 1990s, atheist Herb Silverman of South Carolina had to go through a similar court suit to get his notary license approved. And yet the state still retains in its constitution a belief-in-God requirement to hold public office.

There are, additionally, pivotal matters of perception at stake. Having a religious premise in a prominent document like a constitution assumes religiosity is the norm for all and implies the state’s nonreligious citizens are an excludable group. This assumed religiosity feeds prejudicing myths such as seeing the nonreligious as less ethical than their religious neighbors, less honorable as citizens, less deserving of public office. It exacerbates divisiveness and accepts—even promotes—unequal treatment based on what a person religiously believes or disbelieves.

These are exactly the ills our Founders took decisive steps to avoid by explicitly separating religion from government. Unfortunately most state constitutions ignored that history when written and to this day still contradict that all-important principle.