Correcting unconstitutional state constitutions

By Mathew Goldstein

In 1961, the US Supreme Court ruled in Torcaso v. Watkins that it violates both the first and fourteenth amendment of the US constitution for state governments to require anyone to recite a religious test oath as a condition of government employment. State legislatures modify their constitutions frequently. There were 689 amendments in the period 1994- 2001 alone. Overall, there have been almost 150 state constitutions and they have been amended roughly 12,000 times. Yet more than fifty years after that Supreme Court decision, the text of seven state constitutions (Texas, Maryland, Mississippi, North Carolina, South Carolina, Arkansas, and Tennessee) continue to mandate an unenforceable religious test oath as a condition for government employment as they did prior to 1961.

Among the possible justifications for amending a state constitution, ensuring that the state constitution complies with the federal constitution is surely among the best and least controversial. State lawmakers knowingly obligate all the citizens of their state to respect state laws and they themselves are obligated to respect those same laws. These state lawmakers are also citizens of the nation which similarly has lawmakers who also obligate all the citizens of the nation to respect national laws. So when a state constitution clearly flouts federal law, the state lawmakers are obligated to promptly amend their constitution to ensure the state constitution complies with federal law.

Yet the very same Article 37 of the Maryland Constitution that was declared unconstitutional in 1961 is one of the obsolete state laws that remains intact. The Maryland State Legislature could take the first step to cleanse their constitution of its invalid provisions with 3/5 of both houses voting to do so. They should have done this fifty years ago.

The current Maryland Constitution, ratified in 1867, has been amended almost 200 times, most recently in 2010, a rate that is close to one amendment per year. In 1970 an amendment that created the position of Lieutenant Governor of Maryland was approved. In 1972 an amendment created the current legislative districting system. Two amendments were on the 2008 Maryland State Ballot, both were approved. Amendments were also ratified in 1962, 1964, 1966, 1974, 1976, 1978, 1984, 1988, 1990, 1992, 1994, 1996, 1998, 2002 and 2006. Yet in all of this time, no amendment "for the general purpose of removing or correcting constitutional provisions which are obsolete, inaccurate, invalid, unconstitutional", as called for in Article 14 of the Maryland Constitution, has been passed by the Maryland State Legislature to comply with the Torcaso v. Watkins ruling.

So what is going on here? Why are some state governments failing to respect a fifty year old Supreme Court decision? It cannot be because they consider exhibiting respect for national constitutional law to be unnecessary. It cannot be because they consider amending the state constitution too difficult. It isn't because public opinion favors religious test oaths for government office. Many state constitutions that pre-dated the federal constitution were subsequently revised or amended to remove religious test oath provisions.

The seven state governments have not acted because the unconstitutional religious test is for theism, and there is substantial public opinion opposition to fully applying our constitutional law to atheists. In Torcaso v. Watkins, the Supreme Court ruled that an oath of office cannot be utilized to restrict government employment only to people who self-identity as theists. But according to Congressional law we are "one nation under God" and "in God we trust" describes the national character. In the minds of many people, equality before the law for all citizens is a divisive principle when all citizens really means all citizens and not just theists. In their minds, atheists may exist, but their existence is an alien anomaly that is to be disregarded. In their minds, some people may say they are atheists, but no one is really an atheist. In their minds, atheism is dangerous, it is a rotten choice, it indicates poor character, and therefore atheists should be fenced off from the rest of community in self-defense. In their minds, many atheists accept their outsider status because even they themselves understand it is justified.

And our lawmakers, instead of respecting the federal constitution first and fourteenth amendment laws, enthusiastically celebrate the federal laws from the 1950's that define citizenship and patriotism as theistic. Lawmakers for at least the past fifty years have defined leadership as being about following the majority, wherever it goes, federal constitution be damned. Secularists shouldn't consent to this situation. We should be challenging both public opinion and our lawmakers because we know that they are wrong. Because we know that the 1961 Supreme Court decision was correct. Because we know that the first and fourteenth amendment express legal principles that are worthy of our respect. Because leadership has to come from somewhere, and leadership can only come from the people who recognize the problem.