An atheist group — the Secular Coalition for America — is opening a Texas office in January to lobby for "a strong separation of church and state," and hopes to open similar offices in the rest of the states. Organizers say they find more "egregious" laws and legislation at the state level than in Washington, D.C.
“We’re seeing the most religiously infused laws come from the state level,” said SCA spokeswoman Lauren Youngblood. Laws like these, she said, are “so unconstitutional and so discriminatory.”
The SCA, a coalition that includes 11 other groups as members, cites an example in the Texas Constitution — one that says candidates for public office must believe in a higher power — as the sort of thing it will address. The group does not yet have any specific goals for Texas. But should they decide to try to overturn that clause, they'll would be following in the litigious footsteps of the late Madalyn Murray O'Hair, the famous Texas atheist who 30 years ago challenged the same provision as an attempt to establish a state religion.
In Article 1, Section 4, the Texas Constitution states: "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."
During O'Hair's challenge, she wasn't a candidate for office, hadn't been denied the right to run and couldn't challenge on that ground. The federal courts gave her standing as a voter, but the provision remained in the state's foundational legal document. And she and then-Attorney General Jim Mattox signed an agreement in federal court that contained this line:
The parties hereby agree that the last phrase, “... provided he acknowledge the existence of a Supreme Being.” is void and of no further effect in that it is in violation of the Establishment Clause of the First Amendment of the United States Constitution.
There are different opinions about how much the clause affects candidates’ applications for state office. Mattox agreed on behalf of the state not to enforce it, but it has never been removed from the Texas Constitution.
Forms filed by candidates seeking election do not require them to confirm a belief in a higher power, nor does the Texas Election Code, said Republican Party of Texas spokesman Christopher Elam. Some party officials have never even encountered it before. “This is the first time I’ve heard of it,” said Rebecca Acuña, a spokeswoman for the Texas Democratic Party.
Randall “Buck” Wood, an Austin elections attorney, insists that such a law could never be enforced. “If it were, it would be declared unconstitutional. We’ve had so many statutes in the Texas Constitution declared unconstitutional, but they’re still there. As long as nobody’s being injured by these, nobody brings a lawsuit, and they just sit there.”
Though the provision may not have affected candidates in Texas, similar provisions have had an effect in Maryland and South Carolina. In 1961 and 1997, respectively, each state rejected an atheist candidate's application for office. Both applicants took their cases to the Supreme Court, which struck down the articles in the Maryland and South Carolina constitutions — but Mississippi, Tennessee and Arkansas have kept similar provisions on the books. In Arkansas, “no person who denies the being of a God shall hold any office in the civil department of this state nor be competent to testify as a witness in any court.”
The group also cited the 2011 passage of Texas' National Day of Prayer law as the sort of debate they might be involved in.
“The agenda for the Texas chapter hasn’t been set yet,” Youngblood explained, “but this definitely something we will be taking a further look at.”
Once the SCA opens in each state, the chapters themselves will decide whether to target old laws like these or to focus on other legislation. “There are debates about this provision in the [Texas] state Constitution, whether this is something we want to go after,” Youngblood explained. “Yes, it’s discriminatory, but we want to look into whether it’s still being adhered to, whether it’s still affecting people, and decide based on that information.”
They have affiliates up and running in Arizona and Alabama and aim to open in a total of 48 states by the end of the year.
[Editor's Note: The original version of this story left the misimpression that the Secular Coaltion for America has decided on its agenda for legislative initiatives in Texas and other states. The group's mention of the "supreme being" clause in the Texas Constitution was meant to illustrate the sorts of things they will be trying to eradicate — not as a specific goal or as their reason for opening an office in Texas. We regret the error.]