Ask Herb 4 – The Silverman Lining on Activism

by | March 14, 2019

By Scott Douglas Jacobsen

Herb Silverman is the Founder of the Secular Coalition of America, the Founder of the Secular Humanists of the Lowcountry, and the Founder of the Atheist/Humanist Alliance student group at the College of Charleston. Here we talk about Silverman v. Campbell and more.

Scott Douglas Jacobsen: If you reflect on the Silverman v. Campbell of 1996/1997 through the South Carolina Supreme Court case, and other notable and similar cases – especially those that lost, what is the silver lining in this and other cases? Other positives around even some of the negative issues that may emerge from this, e.g., the reinvigoration of religious fundamentalists to push harder than before.

Herb Silverman: Winning is good, but sometimes losing is better—especially when a loss leads to much bigger wins. I’ll illustrate with a personal example.

In 1989, a colleague at the College of Charleston pointed out that our South Carolina Constitution prohibited atheists from becoming governor.  While I’m no constitutional scholar, I knew this violated Article 6 of the U.S. Constitution, which prohibits religious tests as qualification for any public office. I went to the American Civil Liberties Union office to ask an attorney there how this obviously unconstitutional provision could be removed. The lawyer said, “The best way is for an open atheist to become a candidate.” He added, smiling, “In fact, the very best candidate would be you—in a 1990 race for governor of South Carolina.” After giving this surprising suggestion much thought, I agreed to run as the candidate without a prayer. I assumed, in my political naïveté, that the state attorney general would then simply consent to bring South Carolina into compliance with federal law, and that would end the matter.

My lawyer knew better. When a reporter asked South Carolina Governor Carroll Campbell what he thought of my candidacy and constitutional challenge, Campbell said, “The South Carolina Constitution is fine just as it is because this country was founded on Godly principles.”

My day in court came about a month before the gubernatorial election. Presiding judge David Norton had recently been appointed to the U.S. District Court on recommendation by U.S. Senator Strom Thurmond, a famously conservative senator. My attorney argued against the state’s three lawyers and was not optimistic of victory, even though privately the state’s lawyers acknowledged we were legally correct. It was discouraging to hear that the law isn’t always the primary criterion in deciding cases. A few days before the election, Judge Norton dismissed my case on the grounds that it was not ripe, meaning he would only rule on its merits if I won the election. To the surprise of no one, I lost.

But I’m an optimistic kind of guy, and I always look for positives in a situation. The best for me personally was that I met Sharon Fratepietro when I spoke at the Unitarian Church during my campaign. She volunteered to help, became my one and only groupie, and we’ve been together ever since.

I then learned in 1991 that South Carolina’s Constitution prohibited atheists from serving in any public office, and notary public would be the easiest one to challenge. The U.S. Supreme Court in Torcaso v. Watkins had struck down an identical provision in the Maryland state Constitution in 1961. 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 successful and shorter than my gubernatorial campaign. Shorter, it was not! Governor Campbell rejected my notary application. When we asked why, he said it would be too burdensome to explain all notary public rejections. But in 1994 we learned that there had been 33,471 notary public applications approved in that time period, and that mine was the only one rejected. As far as I know, I’m the only one in the history of South Carolina to be rejected as a notary public. I then won my case in several lower courts, but the state kept filing appeals.

My lawyer took an 86-page deposition from Governor Campbell in 1995. Among Campbell’s many convoluted responses, here is what he said about 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?”

Finally, in 1997 the South Carolina Supreme Court ruled unanimously in my favor, nullifying the anti-atheist clause in the state Constitution.

Although the Religious Right was ultimately unsuccessful, my case indicated 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 prefer to waste time and taxpayer money (close to $100,000 on court fees) on a lost cause rather than risk the wrath and lose the votes of a well-organized Religious Right.

Mine was a case where the law was unambiguously on our side. Atheists and humanists are somewhat divided on how much effort to put into legal challenges for which there may not be legal precedent, and which could create bad law. Such challenges might also stereotype us as unpatriotic Americans who are trying to destroy all forms of religious expression. Examples include removing “under God” from the Pledge of Allegiance, changing the “In God We Trust” motto, and removing government erections of exclusively Christian monuments on public property. For the record, win or lose, I usually support such challenges.

I think we need to make our voice heard and to educate the public. Most don’t know that “under God” was only added to the Pledge during the shameful McCarthy era, turning a secular, inclusive pledge into a divisive, religious one. Or that the de facto motto established by our founders had been E Pluribus Unum, which is Latin for “out of many, one.” Again, this was changed during the McCarthy era, a substitution that excludes an increasing number of Americans who trust and believe in no gods.
The U.S. Supreme Court heard arguments on February 27 in a case brought by the American Humanist Association on the constitutionality of a 40-foot-tall Christian cross towering over an intersection in Bladensburg, Maryland.

There are some well-meaning Christian in the United States who think we are all Christian, or at least that we are all religious. We must do a better job in educating our populace about the importance of separation of religion and government (with lawsuits as a last, but sometimes necessary, resort). We need to proudly promote our founding as a secular country that does not favor one religion over another, or religion over nonreligion, and that the “nones,” those with no religious affiliation, are the country’s fastest growing demographic.

Jacobsen: Thank you for the opportunity and your time, Herb.

Scott Douglas Jacobsen is the Founder of In-Sight: Independent Interview-Based Journal and In-Sight Publishing. He authored/co-authored some e-books, free or low-cost. If you want to contact Scott:

Do not forget to look into our associates: Godless Mom, Nice Mangoes, Sandwalk, Brainstorm Podcast, Left at the Valley, Life, the Universe & Everything Else, The Reality Check, Bad Science Watch, British Columbia Humanist Association, Dying With Dignity Canada, Canadian Secular Alliance, and Centre for Inquiry Canada.

Other Resources: Recovering From Religion.

Photo by Milica Spasojevic on Unsplash

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