WRAL News in Raleigh-Durham reports on a bill introduced by Republicans in North Carolina that has raised eyebrows across the country:
House Joint Resolution 494, filed by Republican Rowan County Reps. Harry Warren and Carl Ford, would refuse to acknowledge the force of any judicial ruling on prayer in North Carolina ??? or indeed on any Constitutional topic:
“The Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people,” the resolution states.
“Each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion,” it states.
No federal court, much less the Supreme Court, is likely to accept that argument. The case against the North Carolina bill, reduced to its essentials, is that while the First Amendment does specifically oblige Congress to “make no law respecting an establishment of religion,” the Fourteenth Amendment stipulates that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This concept, generally known as incorporation, means that state laws cannot trample upon the Bill of Rights.
But then you’ve got the Tenth Amendment, which says that “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.” Some assert that this “nullifies” incorporation. The tension between incorporation and nullification is a constant struggle.
As WRAL notes, the authors of House Joint Resolution 494 are feeling their nullification oats, declaring in Section 2 of their bill:
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.
But then the North Carolina state Constitution tags in, comes flying off the top ropes, and lands on House Joint Resolution 494 with an atomic elbow drop:
Article 1, Section 5 of the North Carolina Constitution requires the state to observe federal law: “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.”
Presumably the bill’s defenders would counter by arguing that the entire point of the bill is to assert that the Constitution does not have anything to say about the establishment of religion by state governments, so they’re not violating the state Constitution’s declaration of fealty to the U.S. Constitution, although the bit about paramount allegiance to the government of the United States would remain problematic.
At any rate, as WRAL explains, this whole thing got started because of a spat with the ACLU about saying prayers at the beginning of official meetings, so it might be best viewed as a symbolic gesture:
The resolution grew out of a dispute between the American Civil Liberties Union and the Rowan County Board of Commissioners. In a federal lawsuit filed last month, the ACLU says the board has opened 97 percent of its meetings since 2007 with explicitly Christian prayers.
Overtly Christian prayers at government meetings are not rare in North Carolina. Since the Republican takeover in 2011, the state Senate chaplain has offered an explicitly Christian invocation virtually every day of session, despite the fact that some senators are not Christian.
In a 2011 ruling on a similar lawsuit against the Forsyth County Board of Commissioners, the Fourth U.S. Circuit Court of Appeals did not ban prayer at government meetings outright, but said prayers favoring one religion over another are unconstitutional.
“To plant sectarian prayers at the heart of local government is a prescription for religious discord,” the court said. “Where prayer in public fora is concerned, the deep beliefs of the speaker afford only more reason to respect the profound convictions of the listener. Free religious exercise posits broad religious tolerance.”
Which brings up another long-standing dispute about the nature of “freedom of religion”: does that mean the government should prohibit religious expression in public or official settings… or does it block the government from making such prohibitions? It is argued that even the most non-denominational, but distinctly Christian, prayer in a public setting would establish a preference that is not compatible with other religious traditions. This gives rise to the fabled “wall of separation between Church and State.”
But if the local county commissioners open their meetings with an “explicitly Christian prayer,” is that really oppressing the religious freedom of a Muslim, Jew, or Hindu who happens to be sitting in the audience? The idea that a particular religion is somehow favored by the government, in even a purely verbal manner, might be said to interfere with efforts by other religions to spread their faith, not mention making believers feel uncomfortable when they attend public meetings. One might point to what the actual suppression of particular religions looks like – the world provides no shortage of mournful examples – and say that nothing of the sort is ever going to happen in the United States, but we’re talking about matters of principle, and today’s news is filled with things that no one thought would ever happen twenty or thirty years ago.
The 2011 ruling from the Fourth U.S. Circuit Court of Appeals mentioned by WRAL is interesting. How do you formulate a prayer that doesn’t “favor one religion over another,” particularly since atheism is also a religious belief, and every conceivable aspect of divinity is disputed by the many religions of the world? “If there is any higher Power, or Powers, out there – and we’re not saying there is – please do not interfere with this county commission meeting in any way, because blessing us would unfairly discriminate against those of other religious traditions, and we certainly don’t want you to curse us. So, if you exist, please just go on about your business, and we’ll go on about ours. Amen.”
As a thought experiment, what would happen if the North Carolina bill was upheld, and set a precedent followed from coast to coast, as all state governments became empowered to establish an official religion? I suspect most of them would probably refrain from doing so, perhaps going so far as to pass symbolic resolutions of their own declaring that no official religion would be recognized by the state government. But let us take the experiment further and suppose that many states did establish official religions. If that really bothered citizens of those states – the initial response would probably involve a good deal of eye-rolling and sighs of “whatever, dude” – they’d either organize politically to overturn the decision, move to states that recognized their religion, or gravitate to states that refrained from recognizing a religion. None of those responses seem like productive uses for the political energy of Americans; it would only distract them from understanding, and voting upon, issues of far greater practical consequence to their daily lives.
I’m not a fan of purely symbolic legislation (as opposed to valid measures that probably cannot pass due to current political conditions) but as long as this one is on the table, it doesn’t hurt to take the opportunity to review the nature of our rights, the proper relationship between federal and state governments, and the limits that should be imposed upon all of them. We should probably engage in such reviews more often.