Trashing the 1st Amendment in North Carolina


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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 …

http://www.huffingtonpost.com/2013/04/03/north-carolina-religion-bill_n_3003401.html#slide=467436

… 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:

http://www.ncleg.net/Applications/BillLookUp/LoadBillDocument.aspx?SessionCode=2013&DocNum=2501&SeqNum=0

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.

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For other interesting (and somewhat amusing) discussions of this proposed legislation, see these articles on TheAtlantic.com website:

http://www.theatlantic.com/politics/archive/2013/04/north-carolinas-proposed-state-religion-isnt-as-unprecedented-as-it-sounds/274646/

… 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.)”

and:

http://www.theatlanticwire.com/national/2013/04/north-carolina-official-government-religion/63833/

… 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.”

Trashing the 1st Amendment in Arizona


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Right wing conservative legislators in Arizona have proposed a new law which would, in blatant violation of the 1st Amendment to the U.S. Constitution, require that high school students recite an oath of allegiance as a prerequisite to graduating from high school.  The legislation would require recitation of the following oath:

“I, _______, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge these duties; So help me God.

See Note 1 below for online news articles and commentary about this proposed legislation.

“Freedom of speech” including both the freedom to speak and the freedom not to speak, any requirement that a high school student recite an oath of allegiance in order to graduate is almost certainly unconstitutional as a violation of the 1st Amendment.

More significantly, and the primary point of the controversy over the proposed legislation, is that  the requirement that students invoke “god” in the oath clearly violates the 1st Amendment’s freedom of religion clause.

As a reminder, here is what the 1st Amendment says:

          Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Proponents of this proposed oath can draw no support from the Ninth U.S. Circuit Court of Appeals decision in Newdow v. Rio Linda Union School District, in which the phrase “under god” in the Pledge of Allegiance was upheld in a 2-1 ruling.  The majority opinion in that case, by Judge Carlos Bea, said:

          We hold that the Pledge of Allegiance does not violate the Establishment Clause because Congress’ ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge—its wording as a whole, the preamble to the statute, and this nation’s history—demonstrate that it is a predominantly patriotic exercise. For these reasons, the phrase “one Nation under God” does not turn this patriotic exercise into a religious activity.

See Note 2 below for the full text of the Newdow decision.

Significantly, however, this ruling was predicated, in significant part, on the fact that the practice involved, teacher-led recitation of the Pledge of Allegiance, was required only of “willing” students.  The ruling was therefore consistent with other Circuit Court decisions upholding similar practices in Virginia and Illinois.  The statutes in each of those states allowed any student who objected to reciting the pledge to sit or stand silently.

See Note 3 below for the Virginia and Illinois cases citations.

As noted by Judge Stephen Reinhardt in his Newdow dissent, even this option should not have saved the school policy:

          Were this a case to be decided on the basis of the law or the Constitution, the outcome would be clear. Under no sound legal analysis adhering to binding Supreme Court precedent could this court uphold state-directed, teacher-led, daily recitation of the “under God” version of the Pledge of Allegiance by children in public schools. It is not the recitation of the Pledge as it long endured that is at issue here, but its recitation with the congressionally added two words, “under God”words added in 1954 for the specific religious purpose, among others, of indoctrinating public schoolchildren with a religious belief. …  Only a desire to change the rules regarding the separation of church and state or an unwillingness to place this court on the unpopular side of a highly controversial dispute regarding both patriotism and religion could explain the decision the members of the majority reach here and the lengths to which their muddled and self-contradictory decision goes in order to reach the result they do.

          To put it bluntly, no judge familiar with the history of the Pledge could in good conscience believe, as today’s majority purports to do, that the words “under God” were inserted into the Pledge for any purpose other than an explicitly and predominantly religious one: “to recognize the power and the universality of God in our pledge of allegiance;” to “acknowledge the dependence of our people, and our Government upon the moral direction and the restraints of religion,” … and to indoctrinate schoolchildren in the belief that God exists. Nor could any judge familiar with controlling Supreme Court precedent seriously deny that carrying out such an indoctrination in a public school classroom unconstitutionally forces many young children either to profess a religious belief antithetical to their personal views or to declare themselves through their silence or nonparticipation to be protesting nonbelievers, thereby subjecting themselves to hostility and ridicule.  (emphasis added and citations omitted)

In any event, it is clear that even under the rulings in Newdow, Myers & Sherman, the proposed Arizona legislation, which provides no exception for those who object to the final clause of the oath and which prevents an objector who declines to recite the oath from graduating, would be unconstitutional.

Regarding the lack of an exception for conscientious objection to the oath, one of the sponsors of the bill, freshman Republican representative and Tea Party member Bob Thorpe,  said, “In that we had a tight deadline for dropping our bills, I was not able to update the language”.  Which is all well and good, except I can’t help wondering why it is that “the language” wasn’t properly — and constitutionally — crafted in the first place.  Are representative Thorpe and his co-sponsors — Republican representatives Sonny Borrelli, Carl Seel, T.J. Shope, Jeff Dial, David Livingston, Chester Crandell and Steve Smith — all really that ignorant of the law and the constitution that they couldn’t have written this bill correctly and constitutionally in the first place?

Thorpe also said,Even though I want to encourage all of our students to understand and respect our Constitution and constitutional form of government, I do not want to create a requirement that students or parents may feel uncomfortable with.”  In that case, Mr. Thorpe, perhaps you should withdraw your ill-considered and unnecessary proposal.

Finally, as noted by Comedy Central’s Ilya Gerner, “Nothing says ‘I take this obligation freely’ quite like a state law that withholds your diploma unless you swear an oath”.  Maybe Arizonans should consider electing Gerner, who appears to have a better understanding of the law than their current representatives, to their state legislature.

See Note 4 below for Gerner’s “Comedy Central’s Indecision” blog post.

A personal aside:  I was a 9 year old elementary school student when the Pledge of Allegiance was modified on June 14, 1954, to add the words “under god”.  Although I did not speak out against the change then, as I would now, I soon after adopted the practice of omitting those words each day when we recited the pledge, and have continued doing so to this day. 

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Note 1:  For news article about this proposed legislation, see these websites:

http://current.com/groups/news-blog/94031387_arizona-bill-would-require-loyalty-oath-for-high-school-graduation.htm

http://www.theblaze.com/stories/2013/01/26/arizona-bill-would-require-hs-students-to-swear-constitutional-oath-under-god-to-get-their-diplomas/

For a commentary about this proposed legislation from the atheist perspective, see this article on the website “Friendly Atheist”:

http://www.patheos.com/blogs/friendlyatheist/2013/01/25/arizona-republicans-propose-bill-that-would-not-allow-atheists-to-graduate-high-school/

Note 2:  For the full text of the Ninth Circuit Court of Appeals Decision in Newdow v. Rio Linda Union School District, see:

http://scholar.google.com/scholar_case?case=11662288665673910405&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Note 3:   The Virginia case referred to above is Myers v. Loudoun County Public Schools.  The full text of the opinion in this case is available here:

http://scholar.google.com/scholar_case?case=1292322060893856606&hl=en&as_sdt=2,5&as_vis=1

The Illinois case referred to above is Sherman v. Community Consolidated School District 21 of Wheeling Township.  The full text of the opinion in this case is available here:

http://scholar.google.com/scholar_case?case=17988630665576858060&hl=en&as_sdt=2,5&as_vis=1

Note 4:  For Ilya Gerner’s “Comedy Central’s Indecision” blog post about this proposed legislation, see:

http://www.indecisionforever.com/blog/2013/01/23/arizona-legislators-propose-loyalty-oath-for-high-school-graduation

New California Laws Effective January 1, 2013


 

The California legislature passed some 800 new laws which become effective on January 1, 2013.

Some new criminal laws include:

AB 1432 adds Penal Code section 273j:  This law makes it a misdemeanor for a parent to fail to report within 24 hours that a minor child is missing or has died.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1401-1450/ab_1432_bill_20120930_chaptered.html

AB 1527 adds Penal Code section 26400:  This law makes it a misdemeanor to carry an unloaded firearm that is not a handgun in any incorporated city or city & county (i.e., San Francisco).  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1501-1550/ab_1527_bill_20120928_chaptered.html

AB 2020 amends Vehicle Code section 23612 to provide for implied consent by any driver to submit to a breath or blood test if lawfully arrested for DUI.  This modifies existing law to delete the previously authorized alternative of submitting to a urine test.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_2001-2050/ab_2020_bill_20120827_chaptered.html

SB 661 adds Penal Code section 594.37:  This law makes it a misdemeanor to picket, on public property, a funeral for a period of time starting one hour before the funeral starts and ending one hour after the funeral ends.  This law is designed primarily to track federal law protecting the privacy of military funerals.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0651-0700/sb_661_bill_20120917_chaptered.html

New laws on some subjects previously discussed here:

SB 1140 amends Family Code section 400 to provide that any priest, minister, rabbi, or authorized person of any religious denomination may decline to solemnize a same-sex marriage if doing so is contrary to the tenets of his or her faith.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1101-1150/sb_1140_bill_20120930_chaptered.html

AB 1536 amends Vehicle Code section 23123.5 to authorize texting while driving as long as the driver is using a hands-free, voice-activated electronic messaging device.  This bill modifies existing law which prohibits texting while driving.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1501-1550/ab_1536_bill_20120713_chaptered.html

Some other new laws of interest:

AB 1708 amends Vehicle Code section 16088 to allow drivers to provide proof of insurance upon request of a law enforcement officer by use of a mobile electronic device.  This is a modification of existing law, which requires drivers to provide documentary proof of insurance upon request of a law enforcement officer.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1701-1750/ab_1708_bill_20120907_chaptered.html

SB 1264 amends Penal Code section 11165.7 to add to the list of “mandated reporters” of suspected child abuse or neglect athletic coaches, assistant coaches and graduate assistants.  This change brings these individuals within the coverage of existing law, which makes it a misdemeanor for a mandated reporter to fail to report such suspected abuse or neglect.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1251-1300/sb_1264_bill_20120924_chaptered.html

SB 1298 adds Vehicle Code section 38750:  This law authorizes the operation of “autonomous” vehicles (that is, vehicles which drive themselves, or more accurately, which are driven by a computer), as long as there is a licensed driver in the driver’s seat.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1251-1300/sb_1298_bill_20120925_chaptered.html

The 1st Amendment — Dialog on Religion & Government


My recent posts here regarding Randy DeSoto’s The Conservative Voice columns were an outgrowth of an ongoing conversation among a group of West Point graduates regarding 2008 presidential election issues. John Sloan, Class of 1955, a frequent contributor to this discussion, provided a lengthy and thoughtful comment on my post on the role of religion in government, to which I will respond here.

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