Legal News

Does N.C. City Councilman?s Avowed Atheism Bar Him From Office?

By Ashby Jones

The story about Asheville, N.C., city councilman Cecil Bothwell would be interesting enough without a legal angle. After all, it’s not often that you hear of an avowed atheist getting elected to public office in any part of the country, let alone the south.

But the legal angle makes the story even more interesting: that Bothwell’s atheism might actually violate the North Carolina constitution — a fact his opponents threatening to raise in a possible lawsuit. Click here for the AP story; here for coverage from the Asheville Citizen-Times; here for a link to Bothwell’s blog.

The story goes like this: Bothwell was elected to the city council last month, and was sworn in last Monday. During his swearing in, he used an alternate oath that does not require officials to swear on a Bible or refer to "Almighty God."

"The question of whether or not God exists is not particularly interesting to me," Bothwell, 59, was quoted as saying to the AP, "and it's certainly not relevant to public office."

But such statements are not sitting well with conservative advocates, who, according to the AP, cite a little-noticed quirk in North Carolina's Constitution that disqualifies officeholders "who shall deny the being of Almighty God." The provision was included when the document was drafted in 1868 and was not revised when North Carolina amended its Constitution in 1971.

One opponent, H. K. Edgerton, is threatening to file suit against the city to challenge Mr. Bothwell's swearing in. "My father was a Baptist minister," Edgerton said. "I'm a Christian man. I have problems with people who don't believe in God."

David Morgan, the head of a conservative weekly newspaper, The Asheville Tribune, said city officials had shirked their duty to uphold the state's laws by swearing in Bothwell.

The obvious question, however: does the North Carolina provision violate the U.S. constitution? The obvious answer: absolutely. Six other states have similar provisions barring atheist officeholders, but none appear enforceable. In 1961, the United States Supreme Court reaffirmed that federal law prohibits states from requiring any kind of religious test for officeholders when it ruled in favor of a Maryland atheist seeking to be a notary public.

But as the AP observes: the federal protections do not necessarily spare atheist public officials from spending years defending themselves in court. An avowed atheist, Herb Silverman, won an eight-year court battle in 1997 when South Carolina's highest court granted him the right to be appointed a notary despite the state's law.

Bothwell said a legal challenge to his appointment would be "fun," but he believes that his opponents' efforts have more to do with politics than religion.

"It's local political opponents seeking to change the outcome of an election they lost," he said.

Full post as published by Law Blog - WSJ.com on December 14, 2009 (boomark / email).