Paty v. McDaniel

• Citation: 547 S.W.2d 897
• Parties: Selma Cash PATY, Appellant, v. Rev. Paul A. McDANIEL et al., Appellees.
• Decision Date: 07 March 1977
• Court: Supreme Court of Tennessee

Page 897

547 S.W.2d 897

Selma Cash PATY, Appellant, v. Rev. Paul A. McDANIEL et al., Appellees.

Supreme Court of Tennessee.

March 7, 1977.

Selma Cash Paty, pro se.

Brooks McLemore Jr., Atty. Gen., Kenneth R. Herrell, Asst. Atty. Gen., Nashville, for appellant.

J. Thomas Mann, Thomas, Leitner, Mann, Warner & Owens, Chattanooga, Frederic S. Le Clercq, Knoxville, for appellees.

OPINION

FONES, Justice.

The major issue in this case is whether the Tennessee Constitutional provision declaring ministers of the gospel and priests of any denomination whatever, ineligible to a seat in either house of the Legislature, violates the free exercise clause of the First Amendment to the Federal Constitution.

Public Acts 1976, Chapter 848, the Legislative call for a limited constitutional convention, established the qualifications of delegates as the same as those for membership in the House of Representatives, thus invoking Article IX, Section 1 of the Constitution of Tennessee that provides:

"Section 1. Ineligibility of ministers and priests to seats in legislature. 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."

Appellant, Selma Cash Paty, a candidate for the office of delegate to the 1977 Constitutional Convention from the twenty-ninth (29th) district of Hamilton County, brought this suit to have appellee, Reverend Paul A. McDaniel, an opposing candidate, declared ineligible to serve, and to remove his name from the ballot.

Appellee defends on the grounds that Article IX, Section 1, violates the free exercise and establishment clauses of the First Amendment to the Constitution of the United States, and the equal protection clause of the Fourteenth Amendment.

The Chancellor observed that:

"The free exercise of religion must include the right to be a minister of the gospel as this is a tenet of the individual's belief."

He held that the exclusion of ministers from public office infringes upon the free exercise of religion guaranteed by the First Amendment and is therefore void.

Appellant insists that the exclusion of ministers fortifies the doctrine of separation of church and state, is directed against a profession, not the exercise of religion, and that it is a natural and reasonable classification rather than a constitutionally impermissible invidious, arbitrary or capricious one.

In the trial court, appellant called appellee as her witness and established that Reverend McDaniel is pastor of the Second Missionary Baptist Church in Chattanooga; that he considers the ministry to be a profession and one of his many duties as such is to lead people to salvation; that if elected as a delegate to the 1977 Constitutional Convention he would not resign as a minister of the gospel, nor as pastor of the church he now serves. On cross-examination it was established that Reverend McDaniel has a Bachelors Degree in Political Science from Moorehead College, a Masters of Divinity from Colgate-Rochester Divinity School and a Masters in Sociology from the University of Rochester. Appellee testified that he could carry out his duties as a minister while serving as a delegate to the Constitutional Convention and that he had no knowledge of any objection on the part of his church to his candidacy or service as a delegate.

Upon its first arrival in this Court, the case was remanded to cure the deficiency of failure to make the Attorney General of Tennessee a party. T.C.A. § 23-1107, Rule 24.04, T.R.C.P., Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913 (1949); Buena Vista Special School District et al. v. Board of Election Commissioners et al., 173 Tenn. 198, 116 S.W.2d 1008 (1938) and Cummings v. Shipp, 156 Tenn. 595, 38 S.W.2d 1062 (1928).

Upon remand, the Attorney General waived appearance in the trial court so that an expedited appeal to this Court might result in a decision before election day. That objective proved to be unattainable and he has filed, at the direction of the Court, a brief addressing all of the issues. He joins appellant in urging the constitutionality of Article IX, Section 1.

It has long been the established law that the First Amendment to the United States Constitution is applicable to the States through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

It is, of course, our responsibility to examine the decisions of the United States Supreme Court for principles and guidelines applicable to and determinative of the issues here, as that Court is the ultimate expounder of the United States Constitution.

But, in our view, we are also required to give weight to the well-established principle that courts must indulge every reasonable presumption of law and fact in favor of the validity of a state's constitutional provision that has been ratified by the people. Snow v. City of Memphis, 527 S.W.2d 55 (Tenn.1975); Southern Railway Company v. Fowler, 497 S.W.2d 891 (Tenn.1973); People v. Sours, 31 Colo. 369, 74 P. 167 (1903); State v. Alderson, 49 Mont. 387, 142 P. 210 (1914); Weeks v. Ruff, 164 S.C. 398, 162 S.E. 450 (1932); State ex rel. Morgan v. O'Brien, 134 W.Va. 1, 60 S.E.2d 722 (1948).

I.

The history of Article IX, Section 1 reveals that it is identical to Article VIII, Section I of the original Tennessee Constitution, approved in 1796. That constitution was almost totally derived from the 1776 North Carolina Constitution and the 1784 Constitution of the lost State of Franklin. See, Caldwell, Studies in the Constitutional History of Tennessee, 77-101 (1907); see also McClure, State Constitution Making, 377-460 (1916).

Both North Carolina and Franklin had constitutional provisions prohibiting ministers from participating in government. North Carolina's read:

"XXI. That no clergyman or preacher of the gospel shall be capable of being a member of either the Senate, House of Commons, or Council of State, while he continues in the exercise of the pastoral function." McClure at 437.

The State of Franklin's was identical. Williams, History of the Lost State of Franklin, 339 at 345 (1933). The North Carolina Constitution also prohibited "receivers of public monies," "officers in the regular army or navy," "agents supplying the army or navy" and "athiests" as well as other government officials from serving in the legislature. McClure at 405.

During our first constitutional convention, an attempt was made to prevent ministers from serving in "any civil or military office or place of trust within this state" as well as the general assembly. Journal of the 1796 Constitutional Convention, 18 (1796). The attempt failed, Id. at 23. The Constitutional Conventions of 1835 and 1870 were unlimited, and the subject provision was readopted by each Convention and ratified by a vote of the people of Tennessee. In the one hundred eighty (180) year life span of this constitutional provision no challenge to its validity has reached this Court. It may or may not be of significance that over the entire period of our statehood, no minister or priest has heretofore felt sufficient infringement upon his free exercise of religion, by virtue of ineligibility to serve in the Tennessee Legislature, to litigate the question.

II.

The only reported case our research has disclosed involving the identical issue we face in the case at bar, is Kirkley v. State of Maryland, 381 F.Supp. 327 (D.Maryland 1974). The U. S. District Court for the District of Maryland declared unconstitutional Article III, Section 11, of the Constitution of the State of Maryland prohibiting ministers or preachers of the gospel, or of any religious creed or denomination from service as Senator or Delegate. Defendants, the State of Maryland represented by the Governor and the Attorney General, for all intents and purposes, admitted the unconstitutionality of the provision and made no attempt to demonstrate any basis for the exclusion of ministers as State Legislators. The Attorney General of Maryland had issued an opinion expressing the view that the section in question was unconstitutional. He concluded, in part, that its inclusion in the Maryland Constitution was due to "a nineteenth century view of the ministry not particularly complimentary to that calling and not prevalent today." 381 F.Supp. at 331.

The district judge added, "Another reason, no doubt, was to insure the separation of Church and State." Id. But, he observed that there are members of the clergy sitting in the Congress of the United States and in all probability in the legislatures of other states, and concluded that if this exclusion was necessary to insure the proper separation between church and state, the Federal Government would have done so.

The State of Maryland did not appeal from the decision of the district court.

We pause to examine the effect of the exclusion of ministers and priests from service in the legislature. It is not asserted by appellee that service in the General Assembly of Tennessee is a tenet of the Baptist faith, nor are we aware of any religious sect that asserts that seeking and serving in public office is a religious duty. It is purely a secular activity. But, it is also true that a minister or priest is faced with the choice of abandoning either his leadership role in religion or any hope of serving the people of his district in the State Legislature. We also recognize that there is some validity in describing the effect of Article IX, Section 1, as prohibiting legislative service because of a person's leadership role in a religious faith.

But the question may well be asked, does it in fact impede the free exercise of religion? Those who believe that all religious leaders should devote their entire time to ecclesiasticism will insist that no...