The View from the Right
By Gregory Conterio
The Rowan County Defense of Religion Act of 2013 does not appear to have much of a future. According to local reporting, North Carolina House Speaker Thom Tillis has said the bill will never be brought up for a vote. Yet even though the bill likely will not be voted upon, let alone implemented, it has raised a good deal of controversy, and raises several legitimate constitutional issues of contemporary interest.
The bill comes in response to an ACLU lawsuit against the use of sectarian prayer (specifically, praying in Jesus’ name) at the start of government meetings in Rowan County, NC.
The entire text of the bill can be found on BillTrack50, but the operative part is contained in only three short sections that read as follows:
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.
SECTION 3.
This resolution is effective upon ratification.
Section 1 is certainly the most contentious, and has generated a certain amount of consternation among left-leaning news outlets. The Huffington Post, for example, frets that North Carolina wants to declare its own state religion. An Examiner editorial declares that North Carolina thinks “ . . . that the U.S. Constitution is for other people.” But is that what is really happening here, or are the authors of this legislation simply trying to establish a brighter line between state sovereignty and the power of the federal government?
In the opening text of NC H494, the bill actually recounts the Establishment and Free Exercise Clauses of the First Amendment, which together read:
“Congress shall make no law respecting an Establishment of Religion, or prohibiting the free exercise thereof;”
The bill then goes on to state that
this prohibition does not apply to states, municipalities, or schools;
This assertion is, as so many constitutional issues are, highly contentious. In its defense, it must be noted that the wording of this clause of the First Amendment is explicitly clear: the lawmaking branch (Congress) of the federal government is prohibited from making any law respecting an establishment of religion, or prohibiting its free exercise. The clause is silent on the question of whether any branch, organ, or representative of government at the state or local level is prohibited from doing these things. Had they meant to say that, the clause would no doubt have been worded appropriately to do exactly that. The fact is the Founders singled out one of the three branches of the federal government for this prohibition. (The latter is arguably an academic point, being as only the Congress has the power to write law.) In any event, the clause, being part of the federal Constitution, is conspicuously and explicitly creating a prohibition that applies to the federal government.
Over time, however, the Establishment Clause has been applied in law to the states as well, by means of a series of Supreme Court decisions such as Everson v. Board of Education. These decisions were justified using what is known as the Incorporation Doctrine, through which the Court has held that the Due Process Clause of the Fourteenth Amendment compels most (but not all) of the Bill of Rights to be “incorporated” by the states, as well as the federal government. Without delving into a detailed history of the doctrine, I will simply summarize by saying that in a fairly arbitrary way, the Supreme Court rather haphazardly concluded that certain freedoms were so fundamental, explicit prohibitions against the federal government violating these rights were assumed to control state and local law as well, despite there being no such language in the Constitution. Thus began a very subtle yet fundamental change in how liberty and the source-authority of our natural rights were regarded by the judicial branch of our government. Rather than being considered unalienable and endowed by our Creator, by appointing the federal government the guarantor and champion of some rights, but not others, the Court has implicitly placed the federal government as the source of our rights, displacing the ideal established by our Founders.
Perhaps the worst abuse came at the hands of Justice Sandra Day O’Connor, who gave us the Endorsement Test. In Lynch v. Donnelly in 1984, O’Connor arbitrarily substituted the term endorse for the word establish in the First Amendment. Even a casual familiarity with the Founders and Framers reveals that as a group, they most emphatically endorsed religion. When I was a young child, I started hearing the phrase separation of church and state as a fundamental principle of the American system of government; however, such words appear nowhere in our Constitution. While our Founders were clear that the specific manner of religious belief or practice should never be used to measure men or ideas, the presence and practice of faith and worship was highly respected, and preferred.
So what of the contention that through H494, North Carolina desires to establish its own religion? In order for such a thing to be true, North Carolinians would first have to either violate or rather radically amend their own state constitution. As it happens, Section 13 of North Carolina’s Declaration of Rights states:
“All persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights of conscience.”
When taken in context, it is clear North Carolina’s H494 expresses no intent or desire to “establish a religion,” but rather make clear that judicial activism notwithstanding, the federal government has nothing to say about it one way or the other. Judicial activism—and current reigning constitutional interpretation—again notwithstanding, they are probably on very solid ground is so saying, despite the fact that it may be politically incorrect to do so.
Section 2 may be less contentious, but only by a little. In addition to rejecting the rulings of the Supreme Court that contradict the Establishment Clause of the First Amendment as being applicable to the federal government only, H494 also asserts its sovereignty under the 10th Amendment:
Whereas, the Tenth Amendment to the Constitution of the United States reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”; and
Whereas, the Tenth Amendment of the Constitution of the United States prohibits the federal government and prohibits the federal courts from expanding the powers of the federal government beyond those powers which are explicitly enumerated;
At the time of its proposal, the 10th Amendment was considered by many to be superfluous and redundant. After all, by implication, the Constitution was clearly a document meant to strictly curtail the powers of the federal government, to codify the Declaration’s recognition of the supremacy of natural rights, and to place the several states in the primary role of governing the people and the communities in which they lived. What need was there to spell this out explicitly? James Madison, the author of the 10th Amendment, explains:
“I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.”
Madison, in Federalist 45, also seeks to assure states nervous about federal overreach that the Constitution is explicitly designed to prevent such overreach, and to set up a scenario whereby the federal government’s primary role is foreign affairs, leaving the states to govern day-to-day domestic matters:
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
The purpose of the 10th is to make clear the limited nature of the enumerated powers granted the federal government, and that the document is a contract whereby the people voluntarily and conditionally surrender certain liberties and freedoms they inherit at birth in exchange for the power necessary to govern.
The popular term today for North Carolina’s position in this bill is nullification, but in reality this is nothing new. The concept of nullification has become a hot topic from time to time throughout our nation’s history. It is the recognition that, should the federal government overreach, and claim unto itself powers beyond those enumerated by the Constitution, the states and the people retain the right to take back such powers unto themselves. What I find terribly ironic is that an amendment Madison conceded might appear superfluous is often interpreted today by the courts as to have effectively no meaning. This alone should be regarded as a sign that something is seriously amiss.
In a time when certain political cohorts like to speak glowingly of penumbras, and to wax eloquent on other novel legal interpretations granting the federal government ever-greater supremacy over our day-to-day lives, a supremacy it was never intended to exercise or possess, I find North Carolina’s H494 unsurprising. I am not personally comfortable with the idea of states establishing their own religions, but I don’t think that is really what H494 is about. Rather, I see the bill primarily as a state’s attempt to reassert the sovereignty and plenary power that it was intended to have by the Framers of the Constitution. The federal government was meant to have a limited set of powers, primarily focused on foreign matters, and yet today, it exercises control over minute details of every American’s life, with the states increasingly taking a back seat. Observers may obsess over the religious aspects of this bill, but the state-sovereignty issue is where its heart lies. Thus, I think the real question here is, How did we come to a place where some Americans believed a bill like this to be necessary?
The Progressive View
By Derek Smith
Do We Need Laws “Defending” Religion?
If the North Carolina legislators behind the Rowan County Defense of Religion Act (RCDRA) were more interested in making a point about federalism than about religion, they made a strangely specific choice by including “Religion” in the name of the resolution. And then to devoting the entirety of the resolution to asserting their state’s right to “mak[e] laws respecting an establishment of religion,” and no other particular rights. So it is not quite the broad federalism statement that Missouri’s SJR 45 is, which presumes to nullify almost everything Republicans don’t like: Obamacare, environmental regulations, gun control, potential future decisions about gay marriage, abortion rights, hate crime legislation, and apparently even Marbury v. Madison.
To be fair, the claims that the RCDRA was intended to establish a state religion are hyperbolic. What the legislators more plainly intended was to exempt North Carolina from Supreme Court decisions limiting prayer at public meetings (and to thumb their noses at the ACLU). The question of whether publicly-endorsed prayer is on principle a good or bad thing for society is highly debatable but not likely resolvable; for most people, the answer is a function of two factors: one’s intensity of religious devotion, and whether one belongs to the dominant religious affiliation.
A quick survey of recent “religious freedom”-themed legislation reveals some general trends that raise red flags—they originate in areas with overwhelmingly Christian majorities, and they tend to come in reaction to a perceived threat to the expression of Christian beliefs. They often refer to a generic freedom of religion, but their supporters rarely even try to hide the fact that they really mean freedom to be a Christian. When Rep. Michele Presnell, one of the sponsors of the RCDRA, was asked if she would be comfortable with a Muslim prayer at a public meeting, her bigoted response—“No, I do not condone terrorism.”
Even without such obvious discriminatory intent, laws claiming to protect the interests of a majority group deserve some extra scrutiny, as “defending the majority” is usually just a polite way of phrasing “persecuting the minority.” Most charges of anti-Christian fall into the I’m-facing-discrimination-based-on-my-desire-to-discriminate-against-others category. The notion that religion could be seriously threatened in a democratic society in which 77% of the population self-identify as Christian (and only 16% as not religiously affiliated) is laughably absurd, particularly considering how underrepresented non-believers are within public office. Among all the elected federal officials in our nation’s history, there are only two who have openly claimed no religious affiliation: Pete Stark, who served in the House for more than 30 years before “outing” his atheism in 2007; and Krysten Sinema, new U.S. Rep. from AZ, although she eschews the labels of “atheist” or “non-believer.” Furthermore, recent polling shows 43% of Americans would not vote for an atheist presidential candidate nominated by their own party, irrespective of qualifications. Non-believers are less popularly supported for elected office than almost every other historically disfavored demographic, falling well behind blacks, Jews, women, and Mormons, and even slightly trailing Muslims and homosexuals.
So for better or for worse, Christianity is sure to remain a significant fixture in American political discourse for the foreseeable future. Trying to protect Christianity legislatively is not a particularly good idea P.R.-wise or strategically for Christians, as it puts both secularists and religious minorities on the defensive. Combining religion and politics is inherently polarizing, as most religious systems have built-in guarantees of absolute, divine correctness of beliefs, necessitating the view that conflicting religious beliefs are absolutely incorrect. But since bad ideas are not per se unconstitutional, and legislators seem to enact (or at least propose) them with alacrity, the question turns to: “Which bad ideas do they have the right to enact?”
Modern Constitutional Jurisprudence
Through the doctrine of selective incorporation as discussed above, nearly all of the rights of the First Amendment should definitively apply against the states. I agree that selective incorporation has spurious legal rationale, and would personally prefer full incorporation of the Bill of Rights. But even if one is uncomfortable with the doctrinal positioning of any type of incorporation, it should still seem like good policy sense not to want to grant states permission to violate their citizens’ truly “fundamental” rights.
While the “fundamentality” of some rights is difficult to assess, those contained in the First Amendment should be uncontentious. It is hard to imagine rights that are much more fundamental in nature for sentient beings than those relating to freedom of thought, consciousness, and expression—concepts of individual free will that should be sacrosanct to conservatives. The Supreme Court has held the two religious clauses of the First Amendment to be fundamental rights since the 1940’s, and a reversal of this is incredibly unlikely in light of recent trends. In 2010 the Court found the Second Amendment right fundamental enough to justify selective incorporation through the Due Process Clause, and accordingly proclaimed Chicago’s handgun ban unconstitutional; it would require a position of stunning audacity to assert that the right to own a man-made invention dating from only the last seven centuries or so is a more “natural” right than those relating to one’s individual mental processes.
Original Intent
Even if the Supreme Court has said that the First Amendment applies to the states, are they correctly interpreting the intentions of the Framers of the Constitution by doing so?
One way to answer that question is with another (rhetorical) question: who cares? There are many reasons not to take an original-intent approach to the Constitution. One is the arcane task of divining the will of the dead, further confounded by the propensity everyone has to project their own intentions. It also seems overly dogmatic to be ever-constrained by the intentions of a few dozen men from the 18th century who could have never imagined modern society. And this may strike some ears as haeresis americana, but the Constitution was not forged of the purest ideals, smelted from hope and dreams, on an anvil of righteousness. It was an ugly process of haggling and compromises, and it seems natural that the optimal positioning of those compromises might change over time.
Assuming we do care, however, even an originalist examination of the Constitution can support the conclusion that the First Amendment applies to the states. Rather than focusing solely on the Fourteenth Amendment, for which there truly is conflicting information in the historical record about both the intentions of the drafters of the amendment and about the intentions of law-makers voting for the final version of the amendment (hence, a good example of why not to rely on originalism), one can also turn to the often overlooked Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The original purpose of this amendment was to alleviate fears of possible application of the maxim expressio unius est exclusio alterius (“the express mention of one thing excludes all others;” i.e., if a right is not mentioned in the Bill of Rights, then that right does not exist). So although the first eight amendments were originally drafted as applicable to the federal government only, the Ninth Amendment implies that people have additional rights, and nothing in the constitution suggests that any rights may only be asserted as against the federal government. In fact, when you look at the Ninth and Fourteenth Amendments together, this analysis become stronger: there are some rights (voting) that the Fourteenth Amendment very clearly does intend to apply to the states, and if some there are at least some rights that are constitutionally enforceable against the states, then the Ninth Amendment opens the door for any of the first eight amendment rights—the fact that the Bill of Rights asserts a right applicable against the federal government does not imply that the right cannot exist with respect to state governments.
An objection that may still exist under this analysis is that nothing in the Constitution gives the federal government the affirmative authority to intervene as a sort of “guarantor of rights,” and some would cite the numerous constitutional constraints on federal power as evidence that it should not have this power. One problem with this objection is that the constraints on the federal government are mostly oriented toward prevention of a dictatorial executive branch or an over-reaching Congress, whereas it is primarily the federal judiciary that acts as the guarantor of individual Constitutional rights. While the Constitution does not explicitly provide for this, it is also much less strongly cautionary about the judicial branch. There is also a very pragmatic response to this objection—if the federal government cannot act as a guarantor of its citizens’ rights, then what potential check is there on a dictatorial state government? Must the residents of the state decide between violent revolt and exodus? Or perhaps we would want neighboring states to intervene on behalf of the rights of fellow Americans? As most of these states with nullification movements are in the South, one would think they should have already learned that lesson.
So in the context of the Rowan County Defense of Religion Act, the issue really is not whether the federal government can tell the states what to do with respect to religion, but rather whether the federal government can step in to protect the rights of American citizens within the jurisdiction of an oppressive state. If not the federal government, then who?