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I saw the following claim in B3ta newsletter #574 (possibly NSFW), under "US Postal Service hates Atheists".

Awful, but then Atheists are not allowed to hold public office in six US states, including Texas.

Is it true that Atheists can't hold public office in Texas? I would have thought that separation of church and state would prevent any such rule being enacted.

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    In case you're wondering, the other states are Arkansas, Maryland, Mississippi, North Carolina, South Carolina, Tennessee, and Pennsylvania. (That's a total of eight, not six). Of those, Pennsylvania and Maryland have similarly weak protection clauses (i.e. only theists are protected from religious discrimination) as described below, and the rest explicitly forbid them from holding office in their constitution.
    – Random832
    Apr 5, 2013 at 13:49
  • @Random832 Do you have references for that?
    – Reinstate Monica -- notmaynard
    May 29, 2014 at 18:12
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    My source was Wikipedia: en.wikipedia.org/wiki/No_Religious_Test_Clause#State_law - it mentions the specific article and section numbers of each state's constitution.
    – Random832
    May 30, 2014 at 20:35
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    There are plenty of provisions that exist in state law that have been invalidated by federal laws or the US Constitution. Many get left, symbolically, or they just don't bother to change them. Mississippi finally got around to ratifying the 13th Amendment in 2013. The fact that they did not do so does not mean they were able to continue with slavery up until then, for example.
    – PoloHoleSet
    Jan 10, 2018 at 15:40

2 Answers 2

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From article 1, section 4 of the Texas Constitution, bolding mine:

Sec. 4. RELIGIOUS TESTS. 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.

From article VI of the US constitution:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The clause in the Texas consitution seems to violate the relevant clause in the US constitution.

There is also the Torcaso v. Watkins case before the Supreme Court. The Court decided:

There is, and can be, no dispute about the purpose or effect of the Maryland Declaration of Rights requirement before us - it sets up a religious test which was designed to and, if valid, does bar every person who refuses to declare a belief in God from holding a public "office of profit or trust" in Maryland. ... We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion." Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.

Though this argument is not based on article VI of the constitution I cited, the court made no decision on whether such clauses in state constutitions would violate this article.

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    State constitutions can be in dispute with the federal constitution as the latter only applies to the federal government (there are some amendments that change that in specific situations, this is almost certainly not one of them, at least historically). E.g. the "separation of church and state" (which doesn't exist, the actual phrasing of article IV just means the state shall not impose a religion on its citizens) for example never applied to the states, and indeed several states have at some point during their existence within the union indeed had a state religion.
    – jwenting
    Apr 5, 2013 at 12:38
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    I leave those decisions to the Supreme Court justices, and they pretty clearly state in their decision that the States can't require any kind of religion test for public office.
    – Mad Scientist ♦
    Apr 5, 2013 at 12:53
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    technically, "nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being" says that in order to be protected from exclusion from holding office on account of one's religious sentiments, one must acknowledge the existence of supreme being. Which means that someone who doesn't believe in god isn't protected from being excluded from holding office on account of not believing in god.
    – Kreiri
    Apr 5, 2013 at 16:03
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    @Kreiri That's exactly it. It doesn't mean you are excluded from office if you are an atheist. It means you are not protected against exclusion from office. But that's not a ban. (And nor am I saying it's a good thing).
    – DJClayworth
    Apr 5, 2013 at 16:55
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    For more information, see en.wikipedia.org/wiki/…. The two "Religious Clauses" (Establishment and Free Exercise) are fully incorporated to the States, and as interpreted, these two clauses together prevent the States and Feds from passing any law that demonstrates a preference for or against any religion. Understand that there are religious belief systems, like Buddhism, that do not recognize any supreme being, so in the Texas case it's not just a question of "militant atheism" being a religion or not.
    – KeithS
    Apr 15, 2013 at 16:46
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No, that is not technically true.

[From article 1, section 4 of the Texas Constitution][1], bolding mine:

Sec. 4. RELIGIOUS TESTS. 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.

The Texas constitution gives protection against religious discrimintation for public office, but that protection does not extend to atheists. However that is long way from saying that atheists can't hold office. It means that under the Texas constitution someone 'could' choose to exclude atheists: but in fact that does not happen. One of the reasons that it does not happen is that it would be illegal under the US constitution.

[From article VI of the US constitution][2]:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Obviously this clause in the constitution discriminates against atheists - but it is not a ban.

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    it would not be illegal under the US Constitution - especially when viewed in light of the fact that at various times states have had 'official' religious institutions at the state level that in no way were in conflict with the 1st Amendment which indicates "Congress shall make no rule"
    – warren
    Apr 5, 2013 at 18:21
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    @warren - Every relevant clause of the First Amendment has been selectively incorporated to the States; see en.wikipedia.org/wiki/…. The States are similarly prohibited from passing or enforcing any law that demonstrates a preference for or against a religion or family of same. Therefore, the Texas Constitution's clause requiring affirmation in a Supreme Being is unenforceable, and remains on the books for the sole reason that changing it would be more effort than it's worth.
    – KeithS
    Apr 15, 2013 at 16:52
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    @warren - can you site some of those instances? Having something in place before more definitive rulings came down from SCOTUS on an issue is not necessarily an indication of what can be done now.
    – PoloHoleSet
    Jan 10, 2018 at 15:38

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