States’ rights and religion
So the following isn’t big news, but it’s of interest because of its relevance to the cases we have studied. Note the precedents that are referenced!
As amendments go, “Congress shall make no law respecting an establishment of religion…” is kind of a biggie. Don’t tell that to the North Carolina lawmakers behind the Defense of Religion Act.
The bill 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.”
According to The Huffington Post, the bill “was filed in response to a lawsuit to stop county commissioners in Rowan County from opening meetings with a Christian prayer,” leading us to assume that the religion they want to establish isn’t Duke basketball. Could legislators in North Carolina actually pull this off?
It’s not likely. Rick Ungar of Forbes points to Lemon v. Kurtzman, the U.S. Supreme Court case that established the “Lemon Test” for whether a state law is violating the First Amendment:
The law or state policy must have been adopted with a neutral or non-religious purpose.
The principle or primary effect must be one that neither advances nor inhibits religion.
The statute or policy must not result in an “excessive entanglement” of government with religion. [Forbes]
Declaring an official religion doesn’t seem to pass the test. Not that states haven’t tried to exempt themselves from federal law before.
“We saw this in the aftermath of Brown v. Board of Education,” Michael Bitzer, a professor at Catawba College, tells NBCNews.com. “The belief is that the states hold more power than the federal government. If the federal government does something, the states can simply ignore it.”
Philip Bump of The Atlantic Wire says the Republicans are pinning their hopes on the interpretation that “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.” This strategy, he notes, has been tried by states many times before and has always failed.
The bill might have had a chance, Ian Millhiser of Think Progress says, if the Fourteenth Amendment hadn’t been ratified in 1868:
While the early Constitution envisioned “rights” as little more than a battle between central and local government, the Fourteenth Amendment ushered in a more modern understanding. Under this amendment, “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” nor may any state “deprive any person of life, liberty, or property, without due process of law.” [Think Progress]
Don’t worry, if the North Carolina lawmakers behind the bill fail, they can always go the Texan route and try to secede.