The latest scheme from Raleigh, via WRAL:
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.
The legislation 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.
I know what you're thinking: That's not legal! What about the Establishment Clause of the Constitution! Well, read on:
"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 bill 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.
You can safely file this under Not Gonna Happen. Even if the state passes the law, there's no chance it would be upheld. Philip Bump at The Atlantic Wire explains the fun circular logic going on: Yes, Marbury v. Madison established federal judicial review, but it was a federal decision so it's not binding. (The Tar Heel State could of course try seceding, but that didn't work out so well for them the first time around.)
The bill might be pointless grandstanding, but it's just one of many pointless pieces of grandstanding that signal the revival of nullification as a legal theory in the Obama years, mostly among conservatives who have claimed that states could disregard duly passed federal laws on matters like health care or gun control. (Liberals have indulged too, demanding that the feds not enforce drug laws in states that have legalized marijuana.)
What makes this case in particular interesting is that despite the natural incredulous reaction this ploy may incite, it's not as unprecedented as it seems. Prior to independence, the Church of England was the established church in the colonies. After the Revolutionary War and prior to the writing and ratification of the Constitution, states were suddenly left to their own devices, and many responded by considering the establishment of official churches. One of Thomas Jefferson's proudest achievements (one of three he included in his epitaph; his presidency wasn't one) was writing the Virginia Statute for Religious Freedom. The statute represented his victory in a battle with Patrick Henry over establishing a state church. Henry, while advocating tolerance, also wanted Richmond to collect taxes that would subsidize several Protestant denominations.
But not every state had a Jefferson. South Carolina went the Henry route, giving state funding to multiple denominations for a time. North Carolina disestablished the Anglican Church in 1776, although the state constitution still contains a now-unenforceable prohibition on non-believers holding office. Ironically, it was today's more liberal states that were likely to keep established churches longest, as Michael McConnell noted in the William and Mary Law Review:
Establishment survived in New England well into the nineteenth century. Disestablishment came to Connecticut in 1818, but not until 1833 in Massachusetts. New Hampshire enacted a toleration act in 1819, but authorization for towns to support Protestant ministers remained on the books, unenforced, for the rest of the century.
The demise of these established churches had nothing to do with the long arm of the federal government reaching where it oughtn't be -- it had everything to do with voters deciding it just didn't work to keep handing money to ministers. "Tellingly, these establishments fell in large measure because citizens of both states tired of the incessant bickering about church taxes, especially as they watched tax-supported congregations split over the doctrine of Unitarianism and lawsuits over the tax revenues belonging to the now divided congregations increase," explains James Hutson in his book Religion and the New Republic.
Of course, these churches were established and then disestablished in the context of a homogeneous society in which Protestant Christians were completely dominant. So let's keep two things in mind when we look at a bill like North Carolina's: First, the Founders, despite being overwhelmingly Protestant men in an era kind to them, intentionally avoided state religion in most cases, and wrote protections against it. And second, even in that homogeneous society, American churches proved too fractious to justify even broadly distributed state support. Now, imagine the difficulties that might erupt in an era when evangelical Christians, mainline Protestants, Catholics, Muslims, Buddhists, Hindus, secular humanists, and atheists all share the culture. How likely is it that such a venture would succeed?
Meanwhile, the North Carolina Senate has moved on to repealing the state's Racial Justice Act.
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