Unenforceable North Carolina Provision Barring Atheists From Office Is Focus of Attention [Corrected]

Yesterday's Asheville Citizen-Times reports on a story about a newly-elected Asheville, North Carolina councilman that has inexplicably been carried repeatedly by online media. Cecil Bothwell who took his oath as city councilman last week affirming, rather than swearing, to uphold the law, and not placing his hand on any sacred text, says he is an atheist, or at least a post-theist. All of this is rather unremarkable as is the fact that North Carolina's state constitution (Art. VI, Sec. 8) still has in it now clearly unenforceable language providing that any person "who shall deny the being of Almight God" is disqualified from holding public office. Ever since the U.S. Supreme Court's 1961 decision in Torcaso v. Watkins, it is clear that even though the state never got around to removing the provision from its constitution, it cannot be applied consistent with the U.S. Constitution.

Nevertheless, former Asheville NAACP President H.K. Edgerton, who is a Southern Heritage activist, has suggested that he might sue Bothwell. This news account and others (such as AP) then suggest that such a suit might tie Bothwell up in litigation for years:

But the federal protections don't necessarily spare atheist public officials from spending years defending themselves in court. 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 as a notary despite the state's law.

Overlooked in this suggestion is the fact that Bothwell is in office, while the 1997 case, Silverman v. Campbell, involved a plaintiff who had been denied appointment to office and had to sue to obtain the appointment. The Silverman case specifically held that Art. VI, Sec. 2 of the South Carolina Constitution, a comparable provision requiring a belief in God to hold office, violates the U.S. Constitution.

NOTE: The original version of this posting inaccurately conflated North Carolina and South Carolina.