Additional Information on the North Carolina Constitutional Provisions Regarding Religion

North Carolina state law has long been concerned with the protection of religious liberties. One of North Carolina’s earliest governance schemes, traditionally said to have been drafted by John Locke, and adopted by the Lord Proprietors in 1669 before the area became a royal colony, guaranteed absolute freedom to all religious bodies.[1] The state’s 1776 constitution included provisions both on the free exercise of religious worship and a prohibition of establishment of a state church.[2] The current version of this state constitutional guarantee provides, “All persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights of conscience.”[3]

The state guarantee of religious freedom has never been absolute. The state constitution has always included a religious test for state office. The North Carolina Constitution of 1776 prohibited a “clergyman, or preacher of the gospel, of any denomination” from serving in the legislature or council of state[4] and further provided that “no person who shall deny the being of God, or the truth of the protestant religion, or the divine authority either of the old or new testament, or who shall hold religious principles incompatible with the freedom and safety of the state, shall be capable of holding any office or place of trust or profit in the civil departments within this state.”[5]

The historic evidence indicates the religious test was not broadly applied even in the early days of statehood. In 1809 the right to membership in the state house of commons of a Jewish member, Jacob Henry of Carteret County, was challenged and the house ruled the constitutional prohibition did not apply to the legislature.[6] William Gaston, a Catholic from New Bern, was one of the more prominent and well respected early office-holders in North Carolina, serving in the state House of Commons from 1807-1809 (and was Speaker in 1808), the state Senate in 1812, the U. S. Congress (1812-17), and was elected by the legislature to the state supreme court, where he served with distinction from 1833 until his death in 1844.[7]

At the 1835 constitutional convention, Gaston argued the religious test was ambiguous (as it could be read to exclude no one or alternatively to include Atheists, Deists, Jews, Catholics, Quakers, Memnonists, and/or Dunkards) as well as unwise and urged its expungement from the constitution. “I trust we shall act up to the axiom proclaimed in our bill of rights, and permit no man to suffer inconvenience or to incur incapacity, because of religion, whether he is Jew or Gentile, Christian or Infidel, Heretic or Orthodox.”[8] The convention refused to delete the religious test, but did, by a 74-51 vote, change “Protestant” to “Christian.” There was broader support for toleration that the vote indicates, as some twenty of those in the minority opposed any religious test at all.[9] The religious test was further amended in 1868 to simply require a belief in God. It continues in that form in the current constitution, albeit unenforceable.[10]

1. William S. Powell, The Carolina Charter of 1663 19 (1954). Only Maryland, Rhode Island, Pennsylvania, Delaware, and to some extent the Carolinas, established broad freedom of religion in colonial America. For an overview of the approach of the various colonial governments, see Michael W. McConnell, The Origins and Historical Understandings of Free Exercise, 103 Harv. L. Rev. 1409, 1421-30 (1990).

2. The 1776 North Carolina Declaration of Rights provided, “That all men have a natural and unalienable right to worship almighty God according to the dictates of their own conscience.” Sect. XIX (1776). The 1776 North Carolina Constitution also included an establishment clause prohibiting the “establishment of any one religious church in this state in preference to any other” and prohibiting use of state funds for construction of religious buildings or subsidy of ministries. N.C. CONST., Sect. XXXIV (1776).

3. N.C. Const., art. 1, § 13 (1996). The North Carolina supreme court has held the state constitution both guarantees freedom of religious profession and worship and also firmly establishes a separation of religion and government. Heritage Village Church & Missionary Fellowship, Inc. v. State, 299 N.C. 399, 263 S.E.2d 726 (1980).

4. N.C. Const., art. XXXI (1776). John Culpepper of Anson County was expelled from the state House of Commons on Dec. 19, 1801 because he was continuing to preach while in office.

5. N.C. Const., art. XXXII (1776).

6. John V. Orth, The North Carolina State Constitution: A Reference Guide (1993).

7. Walter Clark, History of the Supreme Court of North Carolina, 177 N.C. 615, 623 (1919); Kemp P. Battle, History of the Supreme Court, 103 N.C. 339, 371 (1883).

8. William Gaston, Speech of the Honorable Judge Gaston Delivered in the Recent State Convention of North Carolina Assembled for the Purpose of Revising the Constitution 36 (1835).

9. R. D. W. Connor, William Gaston: A Southern Federalist of the Old School and His Yankee Friends 43 (1934).

10. N.C. Const., art. VI, § 8 (1996). The U. S. Supreme Court invalidated enforcement of a similar Maryland requirement. Torcaso v. Watkins, 367 U.S. 488 (1961).