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Staff photo by C.B. Schmelter / The Rev. Paul McDaniel speaks during a panel discussion during a town hall meeting at Orchard Knob Missionary Baptist Church on Monday, Jan. 20, 2020 in Chattanooga, Tenn.

NASHVILLE — Tennessee government's founders in 1796 didn't see much of a place for "ministers of the Gospel" and "priests" when it came to their serving in the state's General Assembly, even inserting a provision in the first Tennessee Constitution specifically banning them from doing so.

But now, nearly a half century after the U.S. Supreme Court in 1978 struck down the state constitution's Article IX Section 1 ban in a case brought by the Rev. Paul McDaniel of Chattanooga, modern-day lawmakers hope to put before voters in 2022 an amendment to delete the now-toothless 225-year-old relic.

Their vehicle is Senate Joint Resolution 55. Sponsored by Sen. Mark Pody, R-Lebanon, a social conservative, the resolution is scheduled to come up Monday in the Senate for the first of three readings in the current 112th General Assembly. After the third reading it will requires a two-thirds majority vote before going to the House for consideration.

The resolution is widely expected to pass both chambers given the votes it received in the prior 111th General Assembly, where it needed only a simple majority. If approved by both chambers this year, it would then be placed on the 2022 ballot where it would require a majority of voters in the governor's race for it to pass and take effect.

Sponsor: 'I don't know the back story'

During discussion last week in the Senate State and Local Government Committee, Pody noted the provision had been struck down by the Supreme Court. April 19 will be the 43rd anniversary of the decision.

But in response to questions, the socially conservative lawmaker acknowledged being in the dark about reasons behind the original ban and the Chattanooga court case where conservative and liberal federal justices tossed it.

"That's a great question, but I don't know the back story or why they put it in originally," Pody said.

McDaniel, a retired pastor of Second Missionary Baptist Church in Chattanooga, veteran of decades of civil rights activism and a former Hamilton County commissioner, remembers it vividly.

"My case made it null and void," McDaniel said. "I think they should take it out."

It stemmed from McDaniel's effort to serve as a delegate in Tennessee's 1977 Constitutional Convention. Would-be delegates were subject to the same qualification requirements — and disqualifications — of legislators. His opponent for a delegate slot, attorney Selma Cash Paty, filed suit to disqualify him, citing the state constitution's ban on ministers serving in the legislature.

McDaniel won his case in Hamilton County Chancery Court. Chancellor Herschel Franks held the Tennessee provision violated the U.S. Constitution's First Amendment, which says Congress shall make no law respecting an establishment of religion or prohibiting its free exercise, and 14th Amendment grounds guaranteeing citizens in states "equal protection of the laws."

McDaniel was allowed to serve in the convention. But the Tennessee Supreme Court later overturned the decision. The issue then entered federal courts, finally arriving before the nation's highest court.

McDaniel, who is Black, noted the 1977 convention recommended and put a number of constitutional proposals on the ballot before voters, among them two Tennessee constitutional provisions previously declared unconstitutional by the U.S. Supreme Court: the banning of interracial schools and interracial marriage. Both were approved by voters.

Origins of Tennessee's ban and a Supreme Court ruling
The Tennessee Constitution's Article IX, Section 1 states that "Whereas Ministers of the Gospel are by their profession, dedicated to God and the care of souls, and ought not to be diverted from the great duties of their functions; therefore, no Minister of the Gospel, or priest of any denomination whatever, shall be eligible to a seat in either House of the Legislature."

In the U.S. Supreme Court's 8-0 ruling, conservative and liberal justices agreed Tennessee's prohibition was unconstitional although they sometimes had differing justifications as to why.

Chief Justice Warren Burger noted the disqualification of ministers from legislative office was a carryover from England. In England the practice of excluding clergy from the House of Commons was justified on several grounds, including prevent dual officeholding in a nation with an official state religion where a church official previously could be appointed minister by the king, Burger wrote.

Another factor there was a belief a minister or deacon should devote himself to his "sacred calling" rather than to "such mundane activities as were appropriate to a member of the House of Commons," according to Berger.

After American independence, Berger wrote, the "purpose of the several States in providing for disqualification was primarily to assure the success of a new political experiment, the separation of church and state."

"Though justification is asserted under the Establishment Clause for the statutory restriction on the ground that if elected to public office members of the clergy will necessarily promote the interests of one sect or thwart those of another contrary to the anti-establishment principle of neutrality, Tennessee has failed to demonstrate that its views of the dangers of clergy participation in the political process have not lost whatever validity they may once have enjoyed," Berger, a conservative, wrote.

Justice William J. Brennan Jr., a liberal, concurred, writing "one's religious belief surely does not cease to enjoy the protection of the First Amendment when held with such depth of sincerity as to impel one to join the ministry."

THE PROVISION

State Senate Joint Resolution 55 seeks to remove the Tennessee Constitution’s Article IX, Section 1 provision. It states “Whereas Ministers of the Gospel are by their profession, dedicated to God and the care of souls, and ought not to be diverted from the great duties of their functions; therefore, no Minister of the Gospel, or priest of any denomination whatever, shall be eligible to a seat in either House of the Legislature.”

 

He also thought Tennessee's ban mirrored the conclusions reached in the U.S. Supreme Court's unanimous 1961 decision in Maryland v. Torcaso. In that decision, a man who was appointed a notary public by the governor was refused a commission when he would not declare his belief in God as the Maryland Constitution required. The court held it violated his First Amendment right.

Today, a number of pastors and ministers serve in the General Assembly. Just last week, two House members who are preachers, one a Republican and the other a Democrat, squared off on opposite sides over the Republican lawmaker's state resolution seeking to designate the "Holy Bible" as Tennessee government's official state book and place it in the Tennessee Blue Book. It is not a constitutional amendment, and its Senate fate is unclear.

Tennessee Senate Judiciary Committee debate

During last week's senate committee hearing, Senate Minority Leader Jeff Yarbro, D-Nashville, questioned why Pody wasn't addressing other provisions in the Tennessee Constitution that have been rendered unconstitutional.

"If we're going to do that, should we just clean up everything that's currently unconstitional in the Tennessee Constitution? We have numerous provisions that can be deleted. Seems like that would be a more sensible way of doing it and putting it in one resolution."

Pody said in response "that is a thought," but he said "one simple step at a time" would be best. Committee Chairman Richard Briggs, R-Knoxville, said legislative attorneys told him the resolution can't be amended.

The Tennessee Constitution has at least two, possibly three other provisions that are unconstitutional.

One is a ban on atheists serving in the General Assembly. Another bans "duellists," an 18th Century concern. A third is the 2006 Tennessee Marriage Protection Amendment, which bans same-sex marriage. In its 2015 ruling in Obergfell v. Hodges, the U.S. Supreme Court overturned such bans, requiring states to issue marriage licenses to same-sex couples and recognize same-sex marriages.

State lawmakers have several other proposed constitutional amendments pending. Among them is a Republican proposal to enshrine Tennessee's decades-old "right to work" statute in the constitution, prohibiting workers from being hired or fired based on their membership or refusal to join a labor union.

Another proposed amendment seeks to remove a clause in the state's constitution allowing slavery or involuntary servitude as punishment for a crime.

Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow on Twitter @AndySher1.

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