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.
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.
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.