As a basis for their suits, they point to Article VI, Section 8 of the North Carolina state constitution which states, "The following persons shall be disqualified for office: First, any person who shall deny the being of Almighty God." This clause is a leftover from the constitution of 1868 that has survived later revisions of the state constitution. The clause clearly violates both the First Amendment (Congress shall make no law respecting an establishment of religion) and Article VI of the US Constitution, ([N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States). All of the states have laws and constitutional clauses that are unenforceable, unconstitutional, and just plain silly. They remain on the books because the legislators think it would be too much bother to remove them. The flaw in that reasoning is that, as long as such laws are on the books, they are available to be used by anyone who wants to cause mischief. That's what's happening in Asheville.
One foe, H.K. Edgerton, is threatening to file a lawsuit in state court against the city to challenge Bothwell's appointment.
"My father was a Baptist minister. I'm a Christian man. I have problems with people who don't believe in God," said Edgerton.
The head of a conservative weekly newspaper says city officials shirked their duty to uphold the state's laws by swearing in Bothwell. David Morgan, editor of the Asheville Tribune, said he's tired of seeing his state Constitution "trashed."
Edgerton's religious bigotry is pretty straightforward and another shot in the tedious cultural war that the religious right has been waging unsuccessfully for decades. Morgan's argument is something newer. Morgan is making a states' rights, nullification argument and claiming nothing less than that the US Constitution is unenforceable in North Carolina. This is light-years beyond the usual tenther nullification arguments.
Of course, Edgerton and Morgan have no chance of winning their lawsuits--if the actually carry through on their threats--but they do have potential to tie the city of Asheville up in expensive litigation for months and even years. A similar case in South Carolina dragged on for eight years before it came to its inevitable end. There are several right wing legal foundations who might be willing to take on such a cause. They all claim to be conservative the equivalent of the hated ACLU. The main difference between them and the ACLU is not ideology; it's sanity. The ACLU always makes sure the Constitution is on its side. The conservative legal foundations want to impose their views on the world, Constitution be damned. That's how these things get out of control.