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!

Could North Carolina actually declare a state religion?
First Amendment, Shmirst Amendment
By Keith Wagstaff | 1:07pm EST
Rep. Harry Warren, one of the two North Carolina lawmakers who filed a bill to declare a state religion.
Rep. Harry Warren, one of the two North Carolina lawmakers who filed a bill to declare a state religion.


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.

7 responses to “States’ rights and religion”

  1. Emily1 says :

    I think it is honestly ridiculous that North Carolina would try to pass such a bill. The Lemon Test and the First Amendment DIRECTLY state that such an idea is unconstitutional. It is interesting, however, seeing how the cases we have studied are all coming together in one case. It seems almost comical to me that the lawmakers would even try to pass a bill, because the purpose of the bill is clearly and vividly outlined as unconstitutional in all three conditions of the Lemon Test. This is an attempt to advance religion, the government literally injecting religion into a state, and for strictly a religious purpose. If this isn’t apparent to the supporters of this bill, then like Wagstaff states, they might as well secede.

  2. Liz7 says :

    I think this is just a testament to how loosely legislators feel they can interpret the Constitution to fit their views. Its almost ironic that Republicans are supporting this bill, seeing as their ideology generally dictates a stricter interpretation. Even though this proposal obviously violates all three points of the Lemon test, the fact that it has support shows how even fundamental principles of the Constitution are being challenged. It’s been over 200 years since it was declared that a state or national religion would not be tolerated in America – but the fact that it is still being challenged today shows how no part of the federal government or Constitution will ever be accepted as final or absolute.

  3. akhilp7 says :

    Fundamentally, the lawmakers were just trying to ensure that, in the future, county officials wouldn’t be prevented from starting meetings with some time to pray. There shouldn’t have been a problem with allowing this at a meeting so the lawmakers could have found a solution that better protects the free exercise clause. Trying to establish a state religion violates the 1st amendment and is counter productive.

  4. Carolyn4 says :

    The Establishment Clause specifies that “Congress shall make no law respecting the establishment of religion.” Whether you look at the case regarding North Carolina through precedents, original intent, or any other way, I fully believe that almost every member of Congress would agree that this bill violates the 1st amendment, and will never get passed. Passing this bill would favor one religion, which Congress is clearly not allowed to do. I don’t see why these representatives believe they have a chance here. When you look at the many precedents including Lemon v Kurtzman, Engel v Vitale, or Abington School District v Schempp, it is clear that in all of these cases the government was entangling themselves too much with religion, and thus violated the Constitution. If North Carolina declared a state religion, the government would be the most entangled with religion that it has ever been.

  5. katiepetrino4 says :

    This law clearly fails the Lemon Test. The legislative intent clearly advances religion, its secular purpose is to have prayer (a religious purpose), and encourages excessive entanglement between government and religion. I’m not sure who advised North Carolina lawmakers that this law would be okay. All precedent shows that this would be unconstitutional.

  6. Connor1 says :

    You would think that government officials would be smart enough to not waste their time trying to pass a bill that in no way will ever even be considering politically viable or constitutional. The Lemon Test clearly states any legislation that advances religion, involves government entanglement with religion, or promotes religion without a secular legislative purpose, violates the Establishment Clause and will not be approved. There are countless precedents out there that rule out a bill such as this ever being passed, and there is no argument that can be made to change that. An interesting point that could be made would be if the entire state was in favor of such a bill, but their is a zero percent chance of that ever happening because all you need is one outlier to sue on the grounds of the Establishment Clause for the Supreme Court to rule this unconstitutional.

  7. Crawford4 says :

    This is pretty ridiculous that they could establish a state religion. Honestly, are these people just utterly unaware of the establishment clause. This issue has been ruled on so many times before, and less obvious entanglements have been struck down by SCOTUS. My guess is this was more of a political ploy than an actual attempt to establish a state religion. This also just underscores the importance of the 14th amendment and selective incorporation because without that things like this could actually happen and leave americans with trampled first amendment rights.

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