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Constitution's "Supreme Being" clause targeted again

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graphic by: Todd Wiseman graphic by: Todd Wiseman

by Zoë Gioja

AUSTIN (THE TEXAS TRIBUNE) - In January, an atheist group will lobby the state Legislature to overturn an obscure clause in the Texas Constitution — one that says candidates for public office must believe in a higher power. The group is following in the litigious footsteps of the late Madalyn Murray O'Hair, 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." 

In other words, the Constitution maintains freedom of religion, but appears to bar atheists from holding state office. 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.

The Secular Coalition for America — which seeks to maintain separation between religion and government — will open a Texas chapter this month to fight the provision, which is one of several such state measures it is trying to erase. "That's where we're seeing the most egregious examples of religion being inserted into secular laws," said SCA spokeswoman Lauren Youngblood. Laws like these, she said, are "so unconstitutional and so discriminatory." 

There are different opinions, though, 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 SCA is planning to establish chapters in these states as well to fight the laws. 

The Texas provision remains, apparently unheeded, in the state's Constitution — though SCA lobbyists would like to see that change. "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."

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