Can North Carolina Declare an “Official” Religion?

The separation of church and state took a real beating last week

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A woman prays during a public prayer service at the Verizon Wireless Amphetheatre in Charlotte, N.C., Sept. 2, 2012.

North Carolina legislators made national headlines last week with a bit of high-profile religious extremism. They introduced a resolution declaring that the state has the right to declare an official religion – presumably Christianity. The bill also contended that states are “sovereign” and that federal courts cannot prevent states “from making laws respecting the establishment of religion.”

The North Carolina bill—which appears to be dead for now—was one of two big church-state blow-ups last week. In Tennessee, legislators withdrew a school voucher bill that would have allowed parents to direct taxpayer money to private schools, including Christian academies. The reason they balked: it suddenly occurred to them that the bill would also allow parents to direct tax dollars to Islamic schools.

(MORE: Where Are the Most Religious States in America in 2013?)

State assaults on the separation of church and state are nothing new. What set the North Carolina bill apart, however, is that it was an aggressive attempt to change the constitutional landscape. It made an argument that conservative lawyers have been developing for some time: that the first amendment’s Establishment Clause does not apply to the states – and that, as a result, states are allowed to favor a particular religion in a way the federal government cannot.

North Carolina’s “Rowan County, North Carolina Defense of Religion Act of 2013” came about as a response to a lawsuit by the ACLU. The civil liberties group charged that Rowan County was violating the first amendment by opening 97% of its meetings with Christian prayers. In 2011, a federal court ruled that another North Carolina’s county’s public prayers violated the first amendment.

The North Carolina bill would have defended against the suit – and any other lawsuits alleging that the state was promoting a particular religion – in two ways. It would have declared that the Establishment Clause did not apply to the states. And it would have asserted that federal courts have no right to tell states what is and is not constitutional.

(WATCH: Your Bill of Rights)

The attempt to declare that states can choose a favored religion might sound a bit loopy, but it is actually a prominent item on the far-right constitutional law wish list. Conservative legal advocates have been arguing for years that the Establishment Clause only prohibits the federal government from designating a favored religion – not the states. They point out that at the time the first amendment was adopted, many states – including North Carolina – actually had established religions.

But the Supreme Court made clear in a landmark ruling in 1947 that the Establishment Clause does apply to states – and they have underscored this holding repeatedly since then. There is, however, one prominent dissenter: Justice Clarence Thomas. In a 2004 opinion, he argued that the purpose of the Establishment Clause was to protect the states from having Congress impose a religion on them. Given that, he argued, it “makes little sense” to use the Establishment Clause to tell the states what they can do.

(MORE: Church and State: The Role of Religion in Cuba)

Justice Thomas is not entirely alone in arguing that the first amendment does not prevent the states from favoring a particular religion. There are at least a few religious rights advocates, legal academics, and law bloggers who share his view. But given that no other Supreme Court Justice has backed his interpretation, it clearly remains a fringe view – and one that will not become law any time soon.

That may be why the Speaker of North Carolina’s House of Representatives declared late last week that the “Rowan County, North Carolina Defense of Religion Act of 2013” will not be getting a vote by the full House, effectively killing it. There may be some legislators who like the idea of turning their states into mini-theocracies, which use taxpayer money and public employees to promote a favored religion. But even if a state law insists that the federal courts cannot stop a state from establishing a religion – as the North Carolina bill did – the federal courts would still go ahead and do just that.

Which leaves the question of what the Tennessee legislators intend to do about their school voucher bill. State Sen. Jim Tracy, a supporter of the bill, said that the issue of taxpayer money going to Islamic schools is one “we must address.” He added that he didn’t “know whether we can simply amend the bill in such a way that will fix the issue at this point.”

Tennessee legislators have some options. They can strip all of the state’s religious schools from the voucher program if they want. Or they can kill the school voucher bill entirely. But one thing they cannot constitutionally do – as North Carolina legislators seemed to finally realize by the end of last week – is to enact a law that favors one religion over another. But it doesn’t mean that we shouldn’t be alarmed by how little all of these legislators seem to understand about the separation of church and state.

MORE: Church-Shopping: Why Americans Change Faiths

25 comments
jgdesigner1
jgdesigner1

Sorry to break the news to you Leftists, fascists and statists but historical and Constitutional facts are facts. 1) The Establishment Clause does not and has never applied to the states. 2) The US Supreme Court does not make "rulings" it makes "opinions". It does not make laws. That would be illegal. 3) The states were allowed to be free of the shackles of the Establishment Clause because the States were to be the experiment in republicanism. If some states chose to have state-protected faiths, or socialist nanny-states or their complete opposite, this was encouraged buy the Founders. It was a means of preventing the tyranny of the ruling class in the Federal government over the People. If someone didn't like the laws in their state, they could leave for another that was more in line with their beliefs. This un-Constitutional and relentless leftist/statist move toward one set of laws for all states enforced by the Federal tyrants began after the Civil War and has since been on a grinding assault to establish a federal tyranny. We need to abolish the entire federal court, law enforcement and "justice" structure and return to states having control over their own destinies. This does not mean that the states can violate anyone's Constitutional liberties based solely on the Constitution & Bill of Rights. But within the specific confines of the Constitution as it was written, the states have every legal right to explore different directions in how their societies are run. This is VERY Jeffersonian and very American. Everything else is just more top-down fascist/communist/statist tyranny.

lazarus00000
lazarus00000

No, they cannot. north Carolina pledged alegiance to the Constitution of the United States and as such cannot break away from those laws.

NUFF SAID!

Lazarus

DavidThompson
DavidThompson

Evangelical Christians (if you can actually call them Christians) is no different than the Taliban.  Their obsession with controlling women, homophobia, maniacal attraction to guns, and puerile view of religion, makes one wonder when we are going to identify evangelicalism as the mental illness that it surely is.  

JohnJones2
JohnJones2

Does North Carolina want to bring back the good old days when for 212 year from 1663 to 1875 the Anglican/Church of England was the official state religion and non-protestants were not allowed to hold public office or work for the government? Or are they in favor of some other religion this time? What hypocrites!

NateWalker
NateWalker

Thanks for the article, Adam. When I called Rep Ford's office they made clear that it was not a bill, but a resolution, an interesting legal distinction. Also, NC disestablished the Church of England as its colonial state religion fifteen years before the states ratified the U.S. Bill of Rights. Ironically, North Carolina was far more progressive in its disestablishment of religion than Congress.  Cheers,  Nate  http://divinity.uchicago.edu/martycenter/publications/sightings/archive_2013/0411.shtml

Leftcoastrocky
Leftcoastrocky

The First Amendment, as made applicable to the states by the Fourteenth, Murdock v. Commonwealth of Pennsylvania,319 U.S. 105 , 63 S.Ct. 870, 872, 146 A.L.R. 81, commands that a state 'shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.'

cleverlyc
cleverlyc

Long question, short answer. NO

Peace_2_All
Peace_2_All

The far-right myopic christians never cease to amaze.

Good grief.

Peace... 

DeweySayenoff
DeweySayenoff

Our current right-wing has created a myth that the founding fathers wanted to create a "Christian Nation".

Almost all of the founding fathers were deists, not Christians.  A good number of them expressed distaste for organized religion in general and most of them had some very unkind words about Christianity in particular.

The only actual "christian" among the seven major founding fathers (John Adams, Benjamin Franklin, Alexander Hamilton, John Jay, Thomas Jefferson, James Madison and George Washington) was John Jay, who was SO Christian in his views, he argued (unsuccessfully) to have Catholics banned from holding public office.  He wrote (in 1816, or about 40 YEARS after the declaration of Independence): "Providence has given to our people the choice of their rulers, and it is the duty, as well as the privilege and interest, of our Christian nation to select and prefer Christians for their rulers".  It's HIM that the right-wing so often quote but the fact is, he didn't prevail in this notion and it was an unpopular idea among the people.

Adams wrote: The divinity of Jesus is made a convenient cover for absurdity.  Nowhere in the Gospels do we find a precept for Creeds, Confessions, Oaths, Doctrines, and whole cartloads of other foolish trumpery that we find in Christianity.

Franklin wrote: When a religion is good, I conceive it will support itself; and when it does not support itself so that its professors are obliged to call for the help of the civil power, 'tis a sign, I apprehend, of its being a bad one.

Jefferson wrote: History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government.  This marks the lowest grade of ignorance, of which their political as well as religious leaders will always avail themselves for their own purpose.

Madison wrote: Ecclesiastical establishments tend to great ignorance and corruption, all of which facilitate the execution of mischievous projects.

Thomas Paine, a well known rabble-rouser of the late 18th century wrote: All national institutions of churches, whether Jewish, Christian or Turkish, appear to me no other than human inventions, set up to terrify and enslave mankind, and monopolize power and profit.

Ethan Allan, Revolutionary War hero wrote: I have generally been denominated a Deist, the reality of which I never disputed, being conscious I am no Christian, except mere infant baptism makes me one; and as to being a Deist, I know not strictly speaking, whether I am one or not.

And even George Washington wrote: Religious controversies are always productive of more acrimony and irreconcilable hatreds than those which spring from any other cause.  Of all the animosities which have existed among mankind, those which are caused by the difference of sentiments in religion appear to be the most inveterate and distressing, and ought most to be depreciated.  I was in hopes that the enlightened and liberal policy, which has marked the present age, would at least have reconciled Christians of every denomination so far that we should never again see the religious disputes carried to such a pitch as to endanger the peace of society.

And these are just a few of them.  Yes, there were Protestant ministers among the founding fathers, but they were in the minority.  Except for those few (who supported liberty in the hopes of making their religions the law of the land - which never happened) of the founding fathers NEVER wanted Christianity (or any other religion) actually RUNNING the country or recognized as a "state religion".

As for the concept of states rights, I call this the Iraqi WMD walk-back.  States rights was settled in 1865.  The states are subservient to the will of the federal government and the U.S. Constitution.  The folly of a group of mostly autonomous states acting in a poorly coordinated fashion under a weak central government was brought to light in the early 19th century - we almost lost the war of 1812 because we didn't have the stones to create a strong central government and it took too long to bring the various states into the fight.  Then slavery became a major issue and in 1861, the southern states (and a couple of Western ones) tried to leave the country.

We know how well that worked out for them.

Ever since that time, for the vast majority of our nation's history, the states have been subservient to the federal government.  The Supreme Court has ruled dozens of times on the issue, all in favor of a strong central government.  So the notion of a state going rogue like North Carolina or even Texas (as indicated from the secession petition after the election), runs counter to the national structure we have evolved into.

One could, I suppose, argue that we evolved into a "Christian nation" and that states should be allowed to create their own official religions.  But the fact is, that's flat-out unconstitutional.  States rights are delineated in the Constitution and through judicial precedent.  And while secession isn't "unconstitutional", it IS anti-constitutional, since while there are provisions for entering the union laid out in the Constitution, there are none for leaving it.  It's a one-way trip, as it should be.

Our country was called the Great Experiment because we became one of the very few nations on Earth to try something no one else had done before - Democracy.  But the founding fathers recognized that democracy relies on the average man to work, and the average man is, well, very average indeed.  So they crafted a framework within which Democracy would work.  That's the Constitution.  We CAN change it, but it takes a supermajority to do that, and so far, we've done it only 17 times in 237 years.  We do that democratically.  THAT, not Christianity or any other religion or faith, is what the country is founded on and what it stands for.

Patriotism is love of country.  For good or bad, in whatever opinion one may happen to have about the political state of the country, a patriot stands by their country.   What most rightists view as patriotism is actually nationalism - a love of a political philosophy or ideology.  They stand by their political ideals at the expense of the country. My feeling is that if people can't stand with the country, peacefully abiding by the will of the majority while working within the system for change, they can damn sure leave it.

tomkinney54
tomkinney54

It would be unfortunate for the United States to end up torn apart by its own version of Pashtun tribesmen.

bojimbo26
bojimbo26

" Religion " : one man who says " You will do what I tell you to do " .

eeenok
eeenok

this is far from the first time conservatives have drafted a bill that asserted as fact things which it had no business asserting, as if you could legislate against the rational analysis of legislation. if conservatives drafted a bill for "sending all citizens of mexican descent to internment camps", you can pretty much guarantee that it would contain a paragraph stating "this bill in no way discriminates unfairly on the basis of race"

seattlduck
seattlduck

At the same time, while calling these people extremists, I also see how they are effectively influencing politics & policies. They are evangelists (one who actively shares their beliefs, of any sort) of their own cause. And that disturbs me greatly.

seattlduck
seattlduck

Not all evangelicals are as radical or extremist as these. I consider them to be on the fringes of Christianity. I am a liberal/progressive evangelical Christian. I once was a rabid right-winger as well, but began seeing the truth of what they were doing for me & many of my friends. While my politics have since taken a hard left, I still believe in the Gospel of Jesus Christ, which is the basic definition of an evangelical.

LoneStunMan
LoneStunMan

@DeweySayenoff 

Great post, Dewey, the sheer volume of your counter-examples and observations was invigorating, but there is an ugly truth hidden in the 'will of the people' :

Consider the application of Protestant virtues toward the progress of equality (the very essence of our Declaration) in our United States. When slavery was debated before Congress among our founding fathers, only Franklin and the Quakers stood to oppose the right of human beings to own human beings.

The rest of our supposedly virtuous Protestant Nation referenced the Bible as a justification for the continuation of slavery. As a consequence, slavery became the great 'engine' of the American South's economy and the subsequent issue of 'states rights' reared up to divide the nation over a practice that belied the very authenticity of the documents upon which our nation was founded.

DeweySayenoff
DeweySayenoff

@eeenok Not to pick nits here, and while I agree with you in principle, the fact is "Mexican" isn't a race.  It's a nationality.  The United States DID send Japanese-Americans to internment camps during World War II, but didn't send others of Asian descent, focusing on their nationality rather than race.

 Just a slight correction there.

AlvinMitchell
AlvinMitchell

@eeenok They would probably call it "The immigration wellbeing act" or "Fair treatment of immigrants act" or something.  They'd probably also put a flyer in it to make it hard to vote against, like making it illegal for the president to shoot private citizens or something that's already illegal. 

DeweySayenoff
DeweySayenoff

@LoneStunMan@DeweySayenoffYou point out some real truths about the biblical justifications used for slavery in the antebellum south.  Indeed, much of the propaganda of the pro-slavery side was that the "Negro" was not human and was to be given direction and purpose in his life by the "benevolent white man" and that it was the white man's Christian duty to see to it.  But also realize that the same tome was liberally used by absolutists to deride slavery as unjust and un-Christian.

This rather graphically underlines the rationale our founding fathers had for trying to keep religion out of government.  it can be used to justify anything.

Also, time marches on.  What was once used to justify slavery no longer has any merit either Biblically or constitutionally today.  It's good to look back to see where we've been - what we did right as well as what we did wrong.  To deny our past deprives us of the lessons it taught us and removes much of the context of things today from our policy and debate.  To re-write it (as so many try to do when it comes to slavery by coaching it in terms of a war over state's rights rather than what it was - all about slavery) is an even greater injustice.

My point in my post was that today's right-wing is trying to re-write history by stating things that were patently untrue: That we were founded as a "Christian Nation".  We weren't.  We never were.  And true to the founding father keen insights, religion in our nation (and others) has been used over an over again as a justification for war, death, destruction, hatred, violence and intolerance since the founding of this country.  Their worst fears about the fate of government at the hands of religion have been realized by the ascendance of religion in politics today.

But the right-wing can't use the excuse that this is what the founding fathers wanted, though.  It's well documented that the vast majority of them didn't.  And if one were to demand of us who know better to prove that they didn't want it, all one needs to do is point out that this group of allegedly "Christian" men so intent on establishing a "Christian Nation" somehow utterly failed to use the words God, Christ or Christian ANYWHERE in the document that establishes the framework upon which our country operates: The Constitution of the United States.  One would think that if they had truly wanted to create a "Christian Nation", they'd have mentioned something about it there.