Constitution be damned! Can North Carolina establish an official state religion?

If you grew up in a Southern state, you’ve grown accustomed to a certain amount of ridicule. Don’t worry about your detractors’ running out of fuel. Our state legislators are working hard to keep the jeers coming.

Today, North Carolina is in the news. State representatives Carl Ford (R-China Grove) and Harry Warren (R-Salisbury) and nine others have sponsored House Joint Resolution 494, which has passed the first reading and has been referred to committee:

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 pretty easy to say: “Nope! It’s unconstitutional on its face! It won’t stand!”

It’s a lot harder to explain why, so let’s do that instead.

Freedom from religion?

When the lawmakers say the Constitution “does not prohibit states… from making laws respecting an establishment of religion,” they’re talking about the Establishment Clause of the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Const. amend. I

North Carolina appears to be saying that it’s not Congress, so the First Amendment doesn’t apply to it.

Incorporation nation

Remember that other time Southern legislators argued that the Bill of Rights (the first 10 amendments) applied only to the federal government and not to the several states? In response to that, the 13th, 14th, and 15th amendments—the “Reconstruction Amendments”—were ratified during the five years after the Civil War.

Constitutional law students are taught to rattle off that “the Fourteenth Amendment applied the First Amendment to the states” as if the text of the Fourteenth Amendment says that. This is not entirely true.

Certainly, Section 1 reads in part: “…nor shall any State deprive any person of life, liberty, or property, without due process of law….” U.S. Const. amend. XIV, § 1. This instantly applied the 5th Amendment due process clause to the states, but it took a surprisingly long time—and a lot of Supreme Court rulings—before we could say accurately that the Bill of Rights is (mostly, if not fully) applied to the states.

In fact, the Supreme Court at first ruled that the First Amendment did not apply to the states. U.S. v. Cruikshank, 92 U.S. 542 (1876). Surprisingly, the Court did not reverse itself in part and apply the Establishment Clause to the states until 1947. Everson v. Board of Education, 330 U.S. 1 (1947).

Who cares what the Supreme Court says?

The North Carolina bill, however, specifically rejects the Supreme Court’s authority to apply the First Amendment Establishment Clause to the state. Can North Carolina do that?

The very first case that law students read in Constitutional Law I is Marbury v. Madison. 5 U.S. 137 (1803). Unfortunately for them, this introduction to law school is frankly a boring and nearly unreadable case, but everybody’s got to get through it to extract the key rule upon which everything else is built: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury at 177.

Lawyers often joke that the Supreme Court relies on circular reasoning here to decide that they have the authority… to have the authority… because they have the authority. (Sadly, this is what passes as a joke for many lawyers.)

They’ve got a point, though. While the Constitution establishes the federal court system, it does not explicitly give the Supreme Court the power to review laws passed by Congress and rule them unconstitutional.

Marbury and other cases have held that this power is implied from the Constitution’s Article III and Article VI:

The judicial power of the United States, shall be vested in one Supreme Court…. The judicial power shall extend to all cases, in law and equity, arising under this Constitution…. The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

--U.S. Const. art. III, § 1.

This Constitution… shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding….

--U.S. Const. art. VI, cl. 2.

If anything is well-settled, it’s the concept of judicial review. The Supreme Court has been deciding whether legislation is constitutional for more than 200 years.

Sorry, North Carolina

In the unlikely event that this proposed legislation makes it out of committee and is passed, someone will sue immediately, and the Supreme Court (if the case makes it that far) will strike it down as unconstitutional. It’s hard to imagine that these 11 legislators don’t already know that.