Church And State

Religious Liberty In North Carolina

Republican legislators in the state of North Carolina have recently proposed a bill that would allow the state to declare an official religion on the grounds that the First Amendment to the US Constitution doesn’t apply to the state since the states are sovereign within their own right.  In shorter form, they declare they are exempt from the Constitution and subsequent court rulings via the Tenth Amendment.  The text of the North Carolina bill is as follows: (official document)

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.

The First Amendment to the US Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; […]”  The Founding Fathers established the First Amendment so that the citizens of the new nation would be able to worship freely without government intervention and to make sure that government and religion didn’t intermingle as they did in England (i.e. The Church of England).  However, that didn’t apply to the states.  As the amendment actually states, it’s Congress that can’t make any such laws.  It doesn’t mention the states.  Originally, this was interpreted to mean that only Congress could not pass such legislation and that individual states could do as they so chose to.  In fact, when the First Amendment was ratified, several states had already established an official religion.  All of these state religions would be disestablished by 1833.


In Gitlow v. New York (1925), the Supreme Court ruled that the Fourteenth Amendment had extended the reach of certain limitations on the federal government that were established in the First Amendment applied to state governments as well.  It became the legal precedent at this point that it wasn’t just Congress that couldn’t pass such laws, but the states couldn’t do so either.  However, it was Everson v. Board of Education (1947) that would transform the interpretation of the First Amendment.  In its ruling, the Supreme Court ruled that the Establishment Clause of the First Amendment was binding upon the states via the Due Process Clause of the Fourteenth Amendment.  In the Court’s decision, Justice Hugo Black wrote the following:

“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.'” 330 U.S. 1, 15-16.

So what about the Tenth Amendment as claimed by the legislators in North Carolina?  The amendment states, “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.”  It is just as it states and has been interpreted.  States are sovereign and have certain rights delegated to them so long as they do not infringe upon the rights of the federal government set forth in the Constitution and its subsequent amendments.  This also applies to the personal rights that were established by the Bill of Rights.

signingdecWhen dealing with such topics as the freedom of religion, the overused quote about the separation of church and state comes into play.  However, the Constitution does not specifically use those words.  However, it is how the First Amendment has been interpreted by the Supreme Court starting with the Everson ruling.  In the majority opinion, Justice Black used the words of Thomas Jefferson who wrote the words in reference to the First Amendment in 1802.  Jefferson, who was a Southerner and one of the biggest advocates for states’ rights, wrote in a letter to the Danbury Baptist Association, “Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.”

The state legislators in North Carolina should possibly do a review of early American history and learn why the Founding Fathers, such as Thomas Jefferson, distrusted establishing official state religions.  Jefferson wrote to the Assembly of Virginia in 1779, “[That the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time […]”  He would continue, “[T]hat to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on the supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own […]”  Jeffersonian Republicans were those that advocated for limited federal government and more for states’ rights, and yet here Thomas Jefferson himself is advocating that no government (federal or state) should have the right to declare an official religion, and that we should all be just as the First Amendment states… free to worship however we choose.  In looking back on how the interpretation of the First Amendment has changed through history, one must tend to lean toward the conclusion that the courts wouldn’t allow this bill in North Carolina (should it be passed) to be enforced on the grounds of the First Amendment.

The North Carolina state constitution did prohibit anyone that didn’t believe in God from public office.  However, such bans were ruled unconstitutional in Turcaso v. Watkins (1961).


Tar Heels

Last week, the North Carolina legislature (both the state House and Senate) passed a constitutional amendment banning same-sex marriage and sending it to a vote of the people once again.  The House vote was 76-41, and the Senate vote was 30-16.  The measures were supported by Republicans and by some Democrats.   North Carolina is the last state in the southeastern US to have no constitutional amendment banning same-sex marriage… and is the last state in the entire South.

For some this move might not be shocking.  The thought process being that the state is part of the South, which is largely anti-gay, and it does have a record of being discriminatory.  It was part of the Confederate States of America and it did have Jim Crow laws in effect, too.  However that it might have had Jim Crow laws after Reconstruction ended, North Carolina was one the last states to officially seceded from the Union, which it did on May 20, 1861.  (Virginia and Tennessee had both seceded already, but it was not ratified until May 23 and June 8 respectfully… after North Carolina had done so).  And when North Carolina did vote for secession, it was only passed by a few votes.  When it came to Sherman’s march from Savannah, Georgia up to meet with Grant in Virginia, he told his troops when they crossed into North Carolina that they were to be respectful as the state had been divided almost evenly on the issue of secession… which was in stark contrast to what he told them to do in South Carolina where the war had begun.

North Carolina seems to be trying to buck the southern-style image that the states around it have.  It’s a huge center for banking… which isn’t that surprising since it was the place of the first gold rush in the US.  It’s population in increasing… barely missing adding an addition seat in the US House of Representatives by a few thousand votes in the 2010 census.  Rather than being a solid-red (or solid-Republican) state… it is quickly becoming a leaning-red (leaning-Republican) to a toss-up state (or purple state).  On a personal side note, I think North Carolina is becoming more of a purple state as Missouri becomes more of a red state.

According to a recent poll, 55% of the people in North Carolina would vote against a constitutional amendment banning gay marriage.  But that doesn’t mean there is reason to celebrate.  Some seeing that this amendment is coming to a vote in 2012 would think that it was a repeat of 2004 and trying to get conservatives to the polls to carry the state for the Republican nominee for President.  However, the vote on this is not coming in November, but rather in May during the Republican Presidential Primary… therefore, hitting the real core of those that would be for banning same-sex marriage and not letting the majority of the people in the state have a voice on the matter.  North Carolina has closed primaries but has opened them up to unaffiliated voters… and there is a Democratic Primary the same day, so the amendment will appear on all the ballots.  However, being that there is a sitting Democratic President, the turnout among Democrats will probably be fairly light as compared to Republicans.  (The same works vice versa when there is a sitting Republican President.)

The course of events in the fight for same-sex marriage is making a dramatic turn.  The real truth is starting to sink in amongst the general population.  We are being seen more as just normal, everyday citizens like everyone else around us.  Who we love and who we decide to marry only concerns ourselves… the same as theirs only concerns themselves.  Who someone marries has no affect on anyone else’s marriage.  Gay marriage has not, and never will, destroy the sanctity of marriage… at least no more than the institution of divorce already has.  Several states this year have already passed civil unions, too.  Though they aren’t full marriage equality, they are a step in the right direction, and I see those states passing gay marriage within a few years.

As North Carolina begins its battles, the pro-gay marriage advocates have a serious battle on their hands.   Because of the way this whole thing is being done (sounds rather back-handed), I do think the amendment will pass, but I hope the people of North Carolina will surprise me and show the entire nation how “purple” or mid-mainstream it has become over the past few years.  I encourage the people of the state to stand up and make it clear that the tide on gay marriage has turned.  The sky has never fallen because of gay marriage, and it never will.  The state will be the focal point of this battle, as it is the only state concerning itself with this issue at the current time.  I will, of course, be watching and hoping that this amendment will go down in defeat… making it the first ever to do so.  We in the community will be able to see how far our message is starting to sink in, and how far tolerance for those in the gay community have gone.  I have faith in The Tar Heel State, and hope that the right message can get out and a new direction can be forged.

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