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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.
This clever, not-at-all-a-slippery-slope strategy is one used by legislators in North Carolina — including the leader of the Republican caucus in the state House — to allow for the adoption of an official religion. The religion isn't named in the bill, but we suspect the choice has been narrowed down to one in the Judeo-Christian tradition.
Laura Leslie at North Carolina's WRAL reports (as spotted by Wonkette):
A bill filed by Republican lawmakers would allow North Carolina to declare an official religion, in violation of the Establishment Clause of the U.S. Bill of Rights, and seeks to nullify any federal ruling against Christian prayer by public bodies statewide. …
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.
The argument the legislators are making goes like this. The Constitution is the law of the land, Bill of Rights included. However, allowing federal courts to determine what's constitutional is not something explicitly articulated in the document. And since the Tenth Amendment says that anything not delegated to the federal government by the Constitution becomes the province of the states, that means North Carolina can determine for itself what is and isn't unconstitutional. And if it wants to decide that it's officially a Muslim or Jainist or whatever state, it is welcome to do so, because it doesn't think that's unconstitutional. Quod erat demonstratum.
The relevant sections of the bill:
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.
It's not an unclever argument, in part because it begs the question. 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.
However! North Carolina may want to be wary of possible side effects from its bold declaration. Democrats could regain control of the legislature, for example, and outlaw any guns in the state, if they so desired, declaring it to be constitutional. Anti-abolitionists could reintroduce slavery to the state. Prohibitionists could ignore the 21st Amendment. Or — worst of all in the eyes of these legislators — a new majority could make Sharia the law of the land.
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.
This article is from the archive of our partner The Wire.
