Legislators in Tennessee are considering altering the state constitution to remove an antiquated provision that bars members of the clergy from holding public office, but they don’t seem inclined to drop a similar provision aimed at atheists.

State Sen. Mark Pody (R-Lebanon) has proposed eliminating the ban on ministers serving in the legislature, which is found in Article IX, Section 1. The same article, enacted in 1796, also bars public office to anyone who “denies the being of God, or a future state of rewards and punishments” as well as anyone who has fought in a duel or helped arrange one.

Pody has proposed rescinding the ban on ministers only. As a practical matter, the change would be symbolic since the language can’t be enforced. It was declared unconstitutional by the U.S. Supreme Court in a 1978 case called McDaniel v. Paty. The language banning atheists from holding public office is also unenforceable; such bans were invalidated by the high court in the 1961 decision in Torcaso v. Watkins. (Apparently, no one has challenged the provision of the law in question banning duelists.)

If Pody’s revision passes the legislature in two consecutive sessions, it will appear on a future ballot and would require approval from a majority of voters.

Some Tennessee lawmakers have questioned Pody’s approach, and they have recommended getting rid of Article IX in its entirety.

“If we’re going to do that, should we just clean up everything that’s currently in the Tennessee Constitution?” asked Senate Minority Leader Jeff Yarbro (D-Nashville). “We have numerous provisions that can be deleted. Seems like that would be a more sensible way of doing it and putting it on one resolution.”

Pody replied that his preference is to make changes “one simple step at a time.”

Writing in the Nashville Tennes­sean, Andrew L. Seidel, director of strategic response at the Freedom From Religion Foundation, called on Tennessee officials to “clean up its Constitution in an even-handed manner.”

Asserted Seidel, “It’s great that Tennessee is attempting to fix its Constitution, but it must do so objectively. Pody claims to be erasing relics of invidious discrimination, but he’s discriminating while doing so. He wants to erase the text that discriminates against ministers but leave the text that treats atheists as second-class citizens.”

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