Old law fuels drive to form atheist lobby

— Eighty-four years after Little Rock’s last highly publicized blasphemy trial, a group representing the nation’s “nontheistic community” today hopes to begin organizing a state chapter to lobby the Legislature.

One item targeted by the Secular Coalition for America is a section in the state constitution that bars atheists from testifying as witnesses or holding office.

Article 19, Section 1 reads as follows: “No person who denies the being of God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in anycourt.”

The section after that bans “dueling.”

Those sections of the 1874 constitution haven’t been applied recently. And the antiatheist law would almost certainly be declared unconstitutional by the courts if they were, critics say.

But its presence in the state’s constitution is a slap in the face, some atheists, agnostics, secular humanists and freethinkers say.

“It’s offensive to be part of a group that our state constitution says is not competent to serve their neighbors as officeholders or even to be in a courtroom,” said LeeWood Thomas, a founder and current board member for the Arkansas Society of Freethinkers, an atheist organization.

Thomas said he plans to be active in state efforts to remove the constitutional provisions against atheists.

“It would be a great move. It’s an outdated law. We need to do some housecleaning,” said the Bryant resident.

While Arkansas is a heavily religious state, it’s unclear whether there would be any organized opposition to removing the anti-atheist provisions.

The leader of an influential conservative religious organization in Arkansas didn’t think it was worth opposing a 2009 effort to repeal the law. And he can’t think of anyone who would try to stop it now.

“They have a right to the marketplace of ideas as much as anyone else,” said Jerry Cox, president of the Family Council. “It’s outmoded for the era that we live in.”

Arkansas has a history, albeit distant, of bias against nonbelievers under state law.

In 1928, in the midst of the battle between creationists and evolutionists, a prominent atheist was not allowed to testify in his own defense in court in Little Rock.

Charles Smith, a nationally known atheist with Arkansas roots, opened a storefront at 710 Main St. as a headquarters to campaign against an anti evolution initiated act. Smith, who was born near Fort Smith but lived in New York City, hung placards in the windows reading: “Evolution is True,” “The Bible’s a Lie,” and “God’s a Ghost.” He also offered free atheist literature.

The secularist outpost didn’t last long. The Arkansas Democrat reported that police shut down the site almost immediately, citing public threats against Smith and promises to burn down the property if it wasn’t closed.

In the subsequent trial, a judge refused to let Smith testify. He was fined $25, which he refused to pay, and he prolonged the national press attention by going on a hunger strike for much of his jail sentence.

Smith’s trial occurred about three years after the famed Scopes Monkey Trial, which pitted evolutionist lawyer Clarence Darrow against the one-time populist presidential candidate and leading creationist William Jennings Bryan.

The fact that the religious fires of the past century have abated doesn’t make it any less “disturbing” that the legal sanction for bias against nonbelievers remains, said Lauren Anderson Youngblood, a spokesman for the Secular Coalition for America.

The Washington-based group, which seeks to unite secularists, atheists and other nonbelievers, will be holding a conference call with likeminded Arkansas activists today. Similar efforts are under way nationwide. The goal is to have chapters in all 50 states by the end of the year.

Keeping a distinct line between church and state is a principal aim of the group, but it isn’t going to make a D.C.-centric push for abolishing the atheist ban, she said.

“People in the [Arkansas] chapter will set the agenda. They know best what the issues are,” she said.

Nationally and locally, the courts have dealt with constitutional bans against atheists before.

In 1961, the U.S. Supreme Court in Torcaso v. Watkins ruled unconstitutional state laws that require religious tests for holding office, such as requiring someone to profess belief in God.

In 1982, a lawsuit in the federal court in Little Rock challenged Arkansas’ anti-atheist constitutional provision. Ultimately the suit was dismissed because the 8th U.S. Circuit Court of Appeals in St. Louis upheld a district-court ruling that no one had proved he had been harmed by the ban or that the ban was likely to ever be enforced, so plaintiffs lacked legal standing.

One of the plaintiffs, Erin Leary, then a first-year law student and an atheist, said she feared that the law would be used to prevent her from working as a prosecutor after graduation.

Leary, still an atheist, is now a Scottsdale, Ariz., lawyer. When contacted by the Arkansas Democrat-Gazette, she expressed disbelief that the provision was still on the books.

“I’m shocked that it’s still there and no one has challenged it. I have half a mind to go down there and figure out how to get [legal] standing,” Leary said. “It would never stand up if anyone took it to court.”

Thirty years ago, Leary’s lawsuit generated headlines, complete with an appearance by the internationally famous atheist Madalyn Murray O’Hair, who was initially a plaintiff. The Austin, Texas, resident and American Atheists founder was disqualified on the grounds that she lacked standing.

Rita Sklar, executive director of the American Civil Liberties Union of Arkansas, said “there is a very strong legal case” still to be made against the measure, but the lack of evidence of any recent enforcement has put the atheist constitutional ban on the back burner.

“It’s morally repugnant,” Sklar said. “But I don’t think it’s being enforced, and we have a lot to do where there are actual harms being committed.”

As fruitless as legal efforts have been, the other lawchanging avenue - a constitutional amendment - hasn’t met with any success either.

In 2009, former state Rep. Richard Carroll, the state’s first Green Party lawmaker, introduced a resolution to eliminate the constitutional language. His effort nevermade it out of committee.

Another try isn’t likely to meet with any more success, said Sklar, predicting the odds of a lawmaker agreeing to take on the task as “slim to none.”

No Arkansas politician would step forward to back repeal “if they ever want to get re-elected,” she said.

Carroll, who later switched to the Democratic Party, lost his bid for re-election in 2010 to state Rep. Tracy Steele in the party primary.

In practice, the constitutional ban on atheists testifying hasn’t come up in recent years, attorneys say.

“From our perspective, it’s not really a practical problem. If you take the oath or affirm, it gets around the Bible problem,” said Matthew Hass, executive director of the Arkansas Trial Lawyers Association, referring to the practice of a witness swearing on the Bible. “Everybody just ignores it.”

Pulaski County Prosecuting Attorney Larry Jegley said he knew about the constitutional language but has never heard of it being invoked.

“It’s some form of religious discrimination. But as painful and painstaking as it would be to solve it with a constitutional amendment, it’s probably better dealt with on a case-bycase basis,” he said.

Aside from possibly tackling the state constitution, Youngblood said she hoped the group would succeed in changing hearts and minds about atheists and other nonbelievers.

“There is still a stigma. The stereotype is that we don’t have any morals. The idea is that if we don’t get morals from God or from [the] Bible how can we have a moral compass? But the idea that we would kill someone as human beings if no one was there to tell us ‘you’ll go to hell if you do’ - we reject that notion,” Youngblood said.

In Arkansas, atheists are “definitely a minority,” said Thomas. But, in recent years, the group has won fights to erect a winter solstice display on the state Capitol grounds and to advertise on the sides of Central Arkansas Transit Authority buses.

“It will take atheists stepping out of the closet to change things,” he said.

Front Section, Pages 1 on 06/28/2012

Upcoming Events