The candidate without a prayer
By Herb Silverman
In 1990, I had a personal and political encounter with the religious right. Born in Philadelphia, educated there and in New York, I moved to South Carolina in 1976 to teach at the College of Charleston. Before 1990, I was vaguely aware of living in the “Bible Belt,” but blissfully unaware of what it really meant or how it could affect me. After all, as a mathematics professor, my cultural life was wrapped around the wonderfully insulated world of academe. I was about to learn how the influence and effectiveness of the religious right would significantly change my world forever.
Why would a liberal, Yankee, atheist Jew, who had never before sought political office, suddenly become a South Carolina gubernatorial candidate? My political saga began when a colleague at the College of Charleston pointed out a clause in the South Carolina Constitution that, “No person shall be eligible for the office of governor who denies the existence of the Supreme Being.”
Article VI of the U.S. Constitution prohibits religious tests as qualification to any public office. So, I consulted a local attorney, who worked pro bono for the South Carolina affiliate of the ACLU. I asked him how this obviously unconstitutional provision could be removed. The attorney told me the only way to challenge it would be through an actual candidacy by someone who publicly declared him or herself an atheist. In fact, he said, the very best candidate would be me—in a race for governor of South Carolina!
After giving this surprising suggestion much thought, I agreed to run. I assumed, in my political naïveté, the state attorney general would simply consent to bring South Carolina into compliance with federal law. I even found that the United Citizens Party, a small party that rarely ran candidates for any office, was willing to nominate me. Of course, I neither expected nor wanted to be elected.
Much to my amazement, my announced candidacy drew national attention, because it seemed so unusual. South Carolina Governor Carroll Campbell reacted by declaring that the state Constitution was fine as it was because the country was founded on Godly principles. However, the first political fence I had to mend was with my astonished and disapproving mother. She had read an Associated Press story about my candidacy in the Philadelphia Inquirer. I had to admit that reading her morning newspaper was not the best way to find out that her only son was a gubernatorial candidate—and an atheist!
I never thought my constitutional challenge would reach so far geographically. And, like many nonbelievers, I wanted to spare family members the potential discomfort such a revelation could bring. After I calmed my mother down, she admitted she was not so distressed about my actually being an atheist. She was more worried about the possible damage to my reputation by such an open and public admission.
I told a reporter that I knew of no acknowledged atheists holding public office anywhere in the country, but I expected there were “closet atheists” in South Carolina and elsewhere. An AP story in the Charleston News & Courier on May 3, 1990, printed responses by South Carolina legislators. Rep. Lenoir Sturkie called my statement, “political maneuvering and a bunch of hogwash.” He added he knew of no atheists in the state legislature. Rep. Larry Martin assured the citizenry that more than ninety percent of the legislators were “very active in their local churches above and beyond their belief in God.” Martin, a Southern Baptist, also offered to pray for me.
Meanwhile, the South Carolina Election Commission noticed a story printed in the News & Courier. The story had alleged “irregularities” in the way I obtained the nomination of the United Citizens Party. On May 15, the Election Commission voted 3-2 that this should be investigated by the State Law Enforcement Division (SLED). The following day, the News & Courier ran an uncomplimentary editorial about my alleged misdeeds under the headline “Panel Wants Silverman Inquiry.” Neither the election commission nor the newspaper offered me an opportunity to defend myself against any charges, although I had informed SLED of my willingness to cooperate and provide them with appropriate documentation.
After hearing nothing about the investigation for eight weeks, I again called SLED. I was told the investigation was nearly complete and my input would not be needed. A few days later, the election commission issued a report that irregularities had been found by SLED and therefore, I would not be allowed on the ballot. It seems one of the United Citizens Party leaders had been badgered by law enforcement officers about why he was supporting an atheist. Eventually, he said he did not understand the document he was signing when I received the party nomination. I had witnesses who could have proved otherwise. My ACLU lawyer said I had a legitimate grievance with the election commission, but he pointed out our case would not be jeopardized if I campaigned as a write-in candidate, which I agreed to do.
I campaigned across the state, appearing in as many “Meet the Candidate” forums as I could persuade to invite me. I always explained that I viewed my case as a civil rights issue. After a forum, the audience often had a chance to speak with the candidates over refreshments. At one such event in the city of Spartanburg, people were keeping their distance from me, as invariably happened. But as I was leaving, one man approached me and hurriedly whispered he was a high-school principal and just wanted to let me know how brave he thought I was to say what I did. He then quickly walked away.
I also appeared on radio talk shows. I would typically be introduced as a “so-called” atheist, or an “admitted” atheist. I wondered what the reaction would have been if another guest had been introduced as a “so-called” Presbyterian, or an “admitted” Southern Baptist. Christian conservative callers would often ask if I worshipped Satan, since I “had to believe in something.” However, the oddest comments came from callers who assumed I must feel free to rape, murder, or commit all sorts of atrocities because I did not believe in a judging God. I told those callers that, with such an attitude, I hoped they maintained their belief in a God—for the sake of society!
I received many condemnatory and proselytizing letters from the religious right. On the rare occasions a return address was included, I wrote back and explained my point of view. I was learning that my campaign was needed not simply to change an unconstitutional state provision. More important was my attempt to change the hearts and minds of my fellow South Carolinians.
My day in court came on October 5, 1990, a month before the election. The state Attorney General had refused to declare the religious test for public office unconstitutional. Instead, he sent three lawyers to challenge me on four grounds: mootness, because I was denied nomination by a party; standing, because I was not a legitimate candidate; ripeness, meaning there was no need to decide the case at the moment; and the Eleventh Amendment, regarding restrictions on suing state officials.
I thought it ironic that the News & Courier had recently ended an editorial with, “If Mr. Silverman truly is trying to teach tolerance rather than atheism, as he says, then he will think twice about legal challenges that needlessly consume taxpayer dollars.” In truth, the state was spending thousands of dollars to enforce an obviously unconstitutional provision.
On judgment day, Judge David Norton dismissed the case on grounds it was not ripe because I had little chance of winning. Norton had just been appointed to the U.S. District Court of South Carolina upon nomination by Senator Strom Thurmond. In effect, he refused to rule on the constitutional issue unless I won the election—which, of course, I did not.
A few months later, I discovered that South Carolina’s Constitution prohibited atheists from holding any public office. My lawyer told me I could challenge this by applying for a notary public license. A virtually identical provision of the Maryland Constitution had been struck down in 1961 by the U.S. Supreme Court in Torcaso v. Watkins. If South Carolina were to grant me a notary public license, it would be an admission by the state that religious tests could no longer be a qualification for public office.
My attorney expected this notary campaign to be shorter and more successful than my gubernatorial campaign. Shorter, it was not! South Carolina is normally one of the easiest states to become a notary. All applications are routinely approved by the office of the governor. I paid my $25 fee in October of 1991, but crossed out the phrase “so help me God” on the application. I also mentioned that the U.S. Constitution prohibits religious tests as a qualification for public office.
Secretary of State Jim Miles returned my application on the grounds I had not filled out the form properly. My lawyer then sent it directly to Governor Carroll Campbell, who rejected it. When we asked why, a spokesperson for his office replied it would be far too burdensome to give reasons for every negative decision. Later, in a deposition taken from Secretary Miles in 1994, he was forced to disclose that 33,471 notary applications were approved from 1991 to 1993. Mine was the only one denied in that period. To my knowledge, I am the only person in the history of South Carolina to be rejected as a notary public.
Governor Campbell left office in January 1995. He claimed immunity from giving a deposition where he might be compelled to state under oath the reason for denying me the notary. Then we got help from a most unlikely source. My ACLU lawyer argued successfully in circuit court that if the lawyers of Paula Corbin Jones could depose President Clinton, then former Governor Campbell could no longer avoid being deposed.
In an ironic coincidence, John Whitehead, founder of the politically conservative Rutherford Institute, defended Paula Jones in her case against Clinton. In his book, The Second American Revolution, Whitehead had blasted the U.S. Supreme Court for striking down religious requirements for public office in the 1961 Torcaso v. Watkins case. This decision was the basis for my case. In that ruling, Whitehead wrote, the Supreme Court, “rejected Judeo-Christian theism as the religion and foundation of the United States.” Whitehead is correct in his assertion. The Supreme Court affirmed we are, indeed, a secular nation in which religious tests for public office are unconstitutional.
My lawyer took an eighty-six-page deposition from Governor Campbell on March 3, 1995. Among his many convoluted responses, the governor argued why it might be permissible to deny office based on religious beliefs:
Would it be right to have somebody running for public office that was avowed to overthrow and destroy the United States of America, and they didn’t believe in a supreme being but they believed in a foreign government, and they call that a religion?
On August 2, 1995, the presiding judge of the Fifth Judicial Circuit in the Court of Common Pleas said my petition to be a notary met all the legal requirements. He requested that the governor act on my application within thirty days. Former governor Carroll Campbell had successfully resisted granting me a notary while in office. So, the decision now resided with his successor, Governor David Beasley. He had been elected in 1994 with strong Christian Coalition support. A born-again Christian, Beasley hoped to see creationism incorporated into the public school curriculum.
Secretary of State James Miles urged state officials to appeal the Circuit Court decision because he did not think the provision represented religious discrimination. He said, “I believe that language is appropriate because I’m a Christian.” Unwilling to go quietly, even after losing a judicial reconsideration appeal, Governor Beasley then appealed to the South Carolina Supreme Court.
A headline in the renamed Charleston Post & Courier on October 31, 1995, read, “Gov. David Beasley wants the S.C. Supreme Court to decide if office seekers should be forced to believe in a Supreme Being.”
I responded to an inquiring reporter that I understood how I could be forced to say I believe (torture would work!). But Governor Beasley did not clarify how I could actually be forced to believe. My point was that it is proper for government to regulate some behavior, but it can never regulate belief. In interviews, I could not resist mentioning that the state considered me qualified to be a professor of mathematics at a public institution, yet it deemed me lacking high enough ethical and moral standards for the office of notary public. Perhaps the value of religious indoctrination over reason and scientific inquiry might help explain the dismal condition of education in South Carolina today, where SAT scores have been among the lowest in the nation for many years.
The state Supreme Court heard my case in October 1996. A local reporter asked me why I thought Governor Beasley was appealing to the state Supreme Court. I said I was under the assumption that Governor Beasley, who had a law degree, knew religious tests for public office were unconstitutional. “By trying to exclude nonbelievers,” I said, “I think he is simply playing to the religious bigotry of a segment of his constituency.”
In the same article, Gary Karr, the Governor’s press secretary, responded that he “denies in the strongest terms that Governor Beasley is a religious bigot and thinks it is a shame that Dr. Silverman would attack the governor’s religious beliefs like that.”
Good news for me came on May 27, 1997. The state Supreme Court unanimously affirmed the Circuit Court’s holding that the South Carolina Constitution violated the First Amendment and the Religious Test Clause of the United States Constitution. Ironically, I shared top billing in the local paper the next day with the person whose lawsuit paved the way for our deposition of Governor Campbell. The two side-by-side headlines in the Charleston Post & Courier were: “Atheist wins fight against ‘God clause’” and “High court says Jones is clear to sue Clinton.”
The May 30 Spartanburg Herald-Journal opinion page said:
Silverman may not be a completely sympathetic figure as he pursues office just to make a point for atheist rights. But he should not be disqualified from the political life of the state solely because of his religious beliefs or the lack thereof.
Nevertheless, Governor Beasley still had a tough call to make. He did not want to be the first governor of South Carolina to grant a notary commission to an acknowledged atheist. However, he was reluctant to appeal to the U.S. Supreme Court for a couple of reasons. His lawyers had concentrated on the states’ rights argument that state officials had sworn to uphold the state constitution without regard to previous U.S. Supreme Court decisions. How could they then ask the federal government to interfere with the unanimous decision of the highest court in the sovereign state of South Carolina?
In addition, South Carolina had recently squandered a substantial amount of taxpayer dollars attempting to keep women out of The Citadel, a South Carolina military college for men only. More litigation was anticipated for having recently posted the Ten Commandments in the Charleston County Council chambers. Conservative state officials did not want to be criticized for wasting even more taxpayer dollars on what would obviously be another costly and fruitless appeal of my case. Finally, on August 8, 1997, Governor Beasley mailed me my notary commission.
Though I had hoped in 1990 for quick affirmation of an atheist’s right to hold public office, the protracted engagement added undeniable benefits to my life. I received considerable media attention in South Carolina, which afforded me the opportunity to publicize a point of view not often heard in the Bible belt. After each such appearance, I received enthusiastic phone calls and mail from people who thought they were the only ones in South Carolina with those beliefs. This encouraged me to help found the Secular Humanists of the Lowcountry, a vibrant community of local freethinkers who meet monthly. Best of all for me, personally, I met my wife, Sharon Fratepietro¾in church! When I was running for governor in 1990, she heard me speak at the local Unitarian Church. She offered to help in my campaign, and we have been together ever since.
Recently, one of my mathematics students, unfamiliar with my case, saw my notary sign prominently displayed in my office and asked if I’d had to go to law school to become a notary. I told him it was not quite that simple. Law school would have taken only three years. It took longer for me to receive my notary commission than my Ph.D. in mathematics! Of course, my right to become a notary should not have taken seven years or happened the way it did, but in many ways it was well worth the wait.
Although the religious right was ultimately unsuccessful in preventing me from becoming a notary public, my case indicates the influence they can exert over politicians. None of the political leaders in South Carolina, and certainly not the lawyers advising them, believed they could prevail legally if I continued to pursue my case. Yet, those same politicians demonstrated they would rather waste time and money on a lost cause than risk the wrath and lose the votes of a well-organized religious right.