Er, it's called separation of church and state

[kierthos]

Evangelicals in North Carolina are pissed because a public official doesn't believe in God.

You see, in NC, to hold any sort of public office... you're required by the state constitution to believe in God. Except, of course, that it violates the separation of church and state. The Supreme Court said so in 1961 when it said a similar law in Maryland was unconstitutional.

But hey... I'm only pointing this out because it's making North Carolina look more backward then South Carolina. Which is quite a feat.

Comments

[morinon.livejournal.com]

To play devil's advocate, the law simply states that CONGRESS (meaning the US Congress, not any state congress) shall make no law respecting religion.

Considering how many states had state religions for a long while after the constitution was ratified, and the judges then saw no issue...

Do I think it's a stupid law? Yes. Do I think it unconstitutional? No.

[kierthos.livejournal.com]

Yes, but since the Supreme Court already ruled that states cannot have restrictions based on religious beliefs for public office..... well, that pretty much settles it.

[morinon.livejournal.com]

Not really. You can find legal precedents to support or oppose ANYTHING you want. Even supreme court cases.

[delwin.livejournal.com]

You're forgetting the 14th Amendment.

[kierthos.livejournal.com]

Ha, thanks, I was forgetting it too.

[delwin.livejournal.com]

Given that the only thing that can overrule the SCOTUS is the SCOTUS or a Constitutional Amendment... I find it hard to believe that.

[morinon.livejournal.com]

Well, that begs the question: is the ability to be elected to office a privilege that is being abridged?

Mind you, 14th is a far stronger argument than the 1st, and depending on the makeup of the SCOTUS, might be a close one, depending on the arguments.

[morinon.livejournal.com]

What they ruled for Maryland was regarding that law in Maryland. Until they rule for NC, they haven't ruled for NC. And if this comes into court, I'm pretty sure it'll go before the SCOTUS, who pretty much end up deciding based on personal opinions.

[delwin.livejournal.com]

Combine the 14th with the 15th, 19th and 24th and you've got a fairly clear picture.

[theweaselking.livejournal.com]

, the law simply states that CONGRESS (meaning the US Congress, not any state congress) shall make no law respecting religion.

You're wrong! Check out the 14th Amendment. The 1st Amendment applies to *all* levels of government in the US, not just Congress.

[delwin.livejournal.com]

... I find your lack of legal knowledge disturbing.

http://en.wikipedia.org/wiki/Torcaso_v._Watkins

[delwin.livejournal.com]

And this has been upheld more than once by the SCOTUS. The most recent being Torcaso v. Watkins

[morinon.livejournal.com]

The 14th amendment does not say anything about the 1st amendment's universality, I know, I was looking at it earlier.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Congress is the only legislative body mentioned.

[theweaselking.livejournal.com]

Congress is the only legislative body mentioned.

...in the FIRST AMENDMENT.

Nwo go read the 14th, which expands the protections of the First to *all* government actors, not just Congress.

[theweaselking.livejournal.com]

What they ruled for Maryland was regarding that law in Maryland. Until they rule for NC, they haven't ruled for NC

Uh, no. SCOTUS precedent applies to all US law.

I'm pretty sure it'll go before the SCOTUS, who pretty much end up deciding based on personal opinions.

Depends on the Justice and the case.

[morinon.livejournal.com]

No, it doesn't. I believe you are mentioning section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This provides you the first amendment rights with regards to freedom of speech or religion, yes, but it in no way limits a state from a preference of religion. I refer you to the tenth amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

You can make a good argument that public office is a constitutionally guaranteed privilege. I personally think it should be. What I disagree with is your assumption that it is ironclad. It is not. For instance, certain public offices on a Federal level are not offered to naturalized citizens, only native-born. This is the biggest hole in what seems to be your assumption that public office is a privilege.

Now, if you really really want President Schwarzenegger, go from that argument.

[morinon.livejournal.com]

Okay, you're right there. Until it's brought up again, which it may well be. In which case, see my above comment.

[morinon.livejournal.com]

Okay. So public office is a citizen's privilege? For all citizens, native born or naturalized, as per the text of the 14th amendment?

So, when do we see our first immigrant president? I think Schwarzenegger would be delighted to hear that the law that prevents him from the presidency should, in fact, have been declared unconstitutional as early as the 60s.

[delwin.livejournal.com]

"No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President"

You either are attempting to use quite faulty logic or you're intentionally misreading things.

[delwin.livejournal.com]

The 14th Amendment does not conflict with Article II. Schwarzenegger can be a Senator but not President. The 14th Amendment as interpreted by the SCOTUS in Torcaso v. Watkins states that no government within the US may violate the 1st Amendment.

Thus someone who passes all the other checks and is allowed to run and hold office may do so regardless of his religion or lack thereof.

[morinon.livejournal.com]

Those have to do with voting rights. As one law professor I talked to put it, before the 19th amendment, women could hold office, just not vote.

Now, to further outline my whole 'this means naturalized citizens can become president' bit.

If you are using the 14th amendment to say that the constitution, and all its amendments, also apply to public office, well, obviously the 1st amendment applies.

But then again, so does the 14th. By effectively declaring public office a privilege of US citizenship, this applies to all, at state or federal levels. The part of the constitution denying naturalized citizens the right to the Presidents predates the 14th amendment, which means that it is AMENDED by the 14th amendment under its current interpretation.

Since the 14th amendment guarantees the equality of native-born and naturalized citizens in all legal privileges, and public office is now seen as a legal privilege, if an earlier part of the US constitution is overturned by a later amendment, the later amendment stands (as the 21st did for the 18th). Therefore, as a logical outgrowth of the 1961 decision, naturalized citizens have the right to be President.

Mind you, with all the fuss this would cause in court, it would just be easier to pass an amendment to change this, but the outcome would be quite interesting to watch.

[delwin.livejournal.com]

Almost, but not quite.

The 14th Amendment is quite clear that it applies to the states not the Federal Government.

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"

Thus the States cannot do anything as restricted by the Constitution and thus bringing the First Amendment into play on the state level.

Nothing in the Constitution says you cannot restrict eligibility for office on additional factors than just citizenship - only that those factors can't include religion.