North Carolina state representatives have introduced legislation that would, if adopted, purport to exempt the state from the strictures of the 1st Amendment of the U.S. Constitution and would allow North Carolina to establish an official state religion.
The proposed legislation, reported today on HuffingtonPost.com …
… is co-sponsored by state representatives Carl Ford (R-China Grove) and Harry Warren (R-Salisbury) and is backed by nine other republican representatives.
The proposed laws read as follows:
SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.
SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.
The name of the bill is “A JOINT RESOLUTION TO PROCLAIM THE ROWAN COUNTY, NORTH CAROLINA, DEFENSE OF RELIGION ACT OF 2013” and is denominated House Joint Resolution DRHJR10194-MM-54. The full text of the resolution is here:
The introduction to this bill acknowledges that the “Establishment Clause” of the 1st Amendment says “… Congress shall make no law respecting an Establishment of Religion, or prohibiting the free exercise thereof ….” It goes on, however, to declare that “… this prohibition does not apply to states, municipalities, or schools ….”
Supporters of the bill cite the 10th Amendment …
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
… for the proposition that the federal government cannot expand its powers beyond those specifically enumerated in the Constitution. They also also assert that the Constitution does not authorize either the federal government or federal courts to determine what “is or is not constitutional” and that, consequently, the ability to determine constitutionality is reserved to the states and the people thereof.
Apparently, these state legislators stopped reading when they finished with the 10th Amendment. They certainly didn’t get to section 1 of the 14th Amendment, which says in part …
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
… and which has been repeatedly held to mean that all of the protections of the Bill of Rights apply as to the states as well as the federal government. In other words, the Constitution of the United States of America does “prohibit states or their subsidiaries from making laws respecting an establishment of religion”.
And it does require the North Carolina General Assembly to “recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion”.
Thus, the state of North Carolina cannot constitutionally declare a state religion, whether this resolution passes or not.
On the other hand, I have to admit that it might be fun to watch them trying to do so. Fewer than 48% of all North Carolinians consider themselves active participants in any religion. The most popular religion in the state is Southern Baptist; however, just 19% of people in the state are active Baptists. Methodists total 9% and Roman Catholics (the fastest growing religion in the state) just over 4%. Other Christian denominations, including Episcopalian, Pentecostal, Lutheran, Presbyterian and Latter Day Saints (Mormon), range down from less than 3% to less than 1% each. All other splinter Christian denominations combined make up roughly 7% of the population.
Jews, Muslims and adherents of Eastern religions (who together total less than 1% of the state’s population) may, in any discussion of this subject, be voices in a Christian wilderness. However, adherents of which of the various Christian denominations do you suppose are going to stand idly by while some other denomination is declared to be the official religion of the state of North Carolina? Even if the proposed state religion is Baptist, will this be acceptable to the other 30% of North Carolinians who actively practice some other religion (never mind the 52% of the people in the state who are not active in any religion)?
And then, even if the North Carolina legislature is able to pass this resolution and declares an official state religion, we’ll have the consequent litigation and inevitable smackdown by the U.S. Supreme Court, the members of which — contrary to the beliefs of the sponsors of this legislation — believe it does have the authority to determine what “is or is not” constitutional. And which will certainly find any “establishment” of a state religion violative of the 1st Amendment.
Oh, by the way, one more thing — it appears that the sponsors of this bill have not even recently read their own state constitution, since the proposed bill violates Article 1, section 5 of the North Carolina constitution. This provision requires the state and its citizens (presumably including its legislators) to comply with federal laws:
Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force.
For other interesting (and somewhat amusing) discussions of this proposed legislation, see these articles on TheAtlantic.com website:
… which notes, in part: “You can safely file this under Not Gonna Happen. Even if the state passes the law, there’s no chance it would be upheld. Phillip Bump at The Atlantic Wire explains the fun circular logic going on: Yes, Marbury v. Madison established federal judicial review, but it was a federal decision so it’s not binding. (The Tar Heel State could of course try seceding, but that didn’t work out so well for them the first time around.)”
… which opens: “Let’s say you’re a state and you want, for some reason, to declare an official government religion. You’d probably recall that such behavior runs a bit afoul of the First Amendment to the Constitution. Leaving you with only one option: Decide that your state gets to interpret the Constitution however it sees fit.”
… adds: “Yes, the 1803 case of Marbury v. Madison clearly settled the issue of the primacy of federal judicial review, but that was decided by the Feds and they don’t have the right, so it doesn’t count. As WRAL notes, this strategy has been tried before to block federal measures that any particular state didn’t like at any particular time. Never, we should point out, successfully.”
… and concludes: “Anyway, the bill will never ever pass and if it did would quickly be struck down by the federal courts, since they have complete authority to do so. The end.”