istockphoto - DenGuyBy Michael D. Peabody-

This week, two members of the North Carolina House of Representatives submitted a resolution which would declare that "the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion." In other words, the legislation declared that that the state could make its own laws about religion and the federal government would not be able to stop them.

Later in the week House Speaker, Thom Tillis, indicated that he would block the bill from being heard in the House. However, the resolution does deserve some serious examination as it reflects a common argument arising in the religious right that the Establishment Clause does not apply to the states.

The "Rowan County Defense of Religion Act of 2013" (H494)  was filed by two state representatives, Carl Ford (R-China Grove) and Harry Warren (R-Salisbury) to support Rowen county commissioners who were fighting a lawsuit that had been filed by the ACLU to end the commissioners' practice of opening meetings with Christian prayers.

Although the resolution was initially intended to address the prayer issue, it attempts an end-run around the lawsuit by denying federal jurisdiction to resolve the dispute.  "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 First Amendment to the U.S. Constitution states "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." While the focus of the Resolution is on the "Establishment Clause" of the First Amendment to the United States Constitution, if resolution proponents' arguments were accurate in that it only limits the actions of the U.S. Congress, not the states, the state would also be free to "prohibit the free exercise" of religion as well. And this would apply to all 50 states, not just North Carolina.

This is the latest in a long line of attempts to claim that religion clauses of the First Amendment  do not apply to the states because they only specifically address what Congress can do. They have argued that the intent of the Founders was to prevent the Federal government from forming a state church and from interfering with state-churches which were established at the time.

Before the Fourteenth Amendment was passed after the Civil War in 1868, providing "equal protection under the law," the Supreme Court held that the protections of the Bill of Rights did not apply to state governments, only the Federal government. This would include leaving issues such as freedom of speech, unreasonable search and seizure, right to keep and bear arms to the states. Under this structure, states could impose laws regarding slavery and Sunday rest laws. Shades of the tension between states and the federal government can be seen in the same-sex marriage arguments, in states where marijuana has been legalized contrary to federal law, and where states are passing laws to limit the Affordable Care Act.

However, under a legal theory called the "incorporation doctrine," the Bill of Rights has been broadly applied to limit government at all levels, including state and local government.

With regard to the religion clauses, in 1940, the U.S. Supreme Court ruled that the Free Exercise Clause applied to the states through the Fourteenth Amendment (Cantwell v. Connecticut) and in 1947 the Court ruled that the Establishment Clause also applied to the states (Everson v. Board of Education). There was no question that free exercise of religion was an individual right, but there was some dispute as to whether the establishment clause addressed an individual right or the right of a state. In writing the Everson decision, Justice Hugo Black cited Thomas Jefferson's 1802 letter to the Danbury Baptists that there should be "a wall of separation between church and state" which is a de facto legal doctrine that has been applied at all levels of government.

Some argue that the Establishment Clause can survive state laws that run contrary to the separation of church and state since it involves state action and the Free Exercise Clause must still be respected by the states since it addresses individual rights. However allowing state establishment of religion would also place free exercise of religion in jeopardy by future state laws because, if that logic were followed, both clauses reside in one sentence of the U.S. Constitution that limits only the actions of "Congress."

Establishment Clause cases do not yield monolithic results where any invocation of religion by a state is impermissible. The results of establishment clause cases can often be inconsistent. For instance, on June 27, 2005 the Supreme Court issued two rulings by 5-4 splits involving Ten Commandment displays. It found that a Ten Commandments display at the Texas state capital had a "secular purpose" and was permissible (Van Orden v. Perry) while displays of the Commandments in Kentucky county courthouses were illegal because they were not integrated with a secular display (McCreary County v. ACLU of Kentucky).In General, the Supreme Court has found that the longer a particular religious symbol or state religious action has existed and the more "cultural" it is, the more likely it is to be permissible (Marsh v. Chambers). But if the religious symbol seems to be for purposes of religious indoctrination it has more often been found in violation of the Establishment Clause.  Public funding of religious institutions has typically been overturned unless the recipient institution makes a very clear statement that the funding will not be used for religious purposes. Religious statements such as "In God We Trust" on money and "under God" in the Pledge of Allegiance have so far escaped judicial disestablishment.

In the case leading to the North Carolina Resolution, where the ACLU is suing Rowan County on behalf of three citizens, the county commissioners each offer prayers at meetings on a rotating basis depending on their religious background. On March 4, for instance, Rowan County Commission Chairman Jim Sides prayed,  "…I pray that you give us wisdom and understanding today, I pray that you guide our thoughts and out intents, Lord, even our words that what we say might honor and glorify you and I personally ask your help in that matter.  I pray that you bless what we say and do today that it might honor and glorify you and praise you for it in Jesus name, amen."

The ACLU alleges that 97 percent of the prayers have specifically favored Christian beliefs over others. In response to the 2011 Fourth Circuit Court of Appeals ruling in Joyner, et al. v. Forsyth County Board of Commissioners, which the Supreme Court declined to review, many other local governments have changed their policies to offer more generic invocations. For members of non-Christian faiths, and even Christians of different denominations, Christian invocations can make them feel excluded from the practice of government and even unwelcome.

The ACLU is seeking a declarative judgment of $1 and that Rowan County pay the legal expenses.

In response to a string of similar rulings, there is an organized movement to nullify federal jurisdiction over matters of religion (see Constitution Restoration Act) both at the federal and state level.  The North Carolina resolution, introduced this week, is akin to an "ordinance of nullification" which would make it illegal for the state not to violate the Establishment Clause of the U.S. Constitution.

A group called the "Tenth Amendment Center" is mounting a "Nullify Now!" effort to argue for the supremacy of state over federal law.

Although "states rights" arguments seem to have ended with the dissolution of slavery and racial segregation, these debates are still very much alive and well throughout many parts of the United States. Some have even discussed, with varying degrees of sincerity, the possibility of revisiting the issue of secession.

It is nearly inconceivable that the talk of ignoring federal laws, and rhetoric about retaining arms to oppose a "tyrannical federal Abraham Lincolngovernment" will ever result in anything other than arguments on the Internet, but for purposes of closing this essay, I will cite a speech given by Abraham Lincoln in a special session of Congress in 1861 which seems eerily pertinent in these times of ideological division and national financial distress.

"It might seem, at first thought, to be of little difference whether the present movement at the South be called 'secession' or 'rebellion.' The movers, however, well understand the difference. At the beginning they knew they could never raise their treason to any respectable magnitude by any name which implies violation of law. They knew their people possessed as much of moral sense, as much of devotion to law and order, and as much pride in and reverence for the history and government of their common country as any other civilized and patriotic people. They knew they could make no advancement directly in the teeth of these strong and noble sentiments. Accordingly, they commenced by an insidious debauching of the public mind. They invented an ingenious sophism which, if conceded, was followed by perfectly logical steps, through all the incidents, to the complete destruction of the Union. The sophism itself is that any State of the Union may consistently with the National Constitution, and therefore lawfully and peacefully, withdraw from the Union without the consent of the Union or of any other State. The little disguise that the supposed right is to be exercised only for just cause, themselves to be the sole judges of its justice, is too thin to merit any notice.

"With rebellion thus sugar-coated they have been drugging the public mind of their section for more than thirty years, and until at length they have brought many good men to a willingness to take up arms against the government the day after some assemblage of men have enacted the farcical pretense of taking their State out of the Union, who could have been brought to no such thing the day before."

President Abraham Lincoln – Speech to a Special Session of Congress 1861



Photo Credit: DenGuy –



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