Sunday, April 14, 2013

I hate walls, and North Carolina does too ...

Religious worship is of the utmost importance to Americans and any attempts at tinkering with religion in the United States tends to produce high levels of anxiety among the populace. Despite being a touchy issue among citizens, North Carolina made waves last week by introducing a bill for discussion into their state legislature that would permit the General Assembly to declare an official state religion.

While the resolution was largely considered demonstrative, it does raise some interesting questions about the issue of religion in the United States and the level of sovereignty retained by individual states. Can a state actually declare they have an official religion? That's a difficult question to answer, but I believe the answer could possibly be yes.

When the United States Constitution was written, the issue of religious liberty was considered extremely significant. Religious freedom had been an important factor in many people immigrating to the New World. By 1787, each individual state had its own identity, including their own religious preferences.

Massachusetts had a large Christian following within the Puritan movement. Maryland had a mix of religious activity, highlighted by a tolerance for Catholics (not a universal trait in America), Pennsylvania was predominantly made up of Quakers, but allowed free worship of most religions. Each state had a religion that not only was popular among the people, but became intermingled with government. Several states had requirements within their own state constitutions that called for elected officials to take an oath proclaiming the Christian faith.

The United States Constitution included the Establishment Clause in the Bill of Rights, which stated, "Congress shall make no law respecting an establishment of religion ..." This statement, however, only prevented the federal government from establishing a religion. The First Amendment did not affect individual states and their laws pertaining to religion within their individual borders.

The issue of faith cropped up in 1802 when the Danbury Baptist Association became frustrated with the fact they were persecuted for their specific faith beliefs in Connecticut. President Thomas Jefferson replied with his now famous letter declaring a 'wall of separation' existed between church and state. Jefferson notably railed against the idea of a state run church, writing that using tax dollars to support a religion many do not believe to be true, was both 'sinful' and 'tyrannical'.

While there may be truth and wisdom in what Jefferson wrote, his words do not constitute law or have any special magic to them. In fact, the phrase 'wall of separation' would not become widely known until the mid-20th century. In Jefferson's era, religion continued to be mingled with government.

Religious activity in state institutions continued until 1947, when the Supreme Court tackled a case involving government aid to religious schools. In addition to their ruling, the Court stated the Establishment Clause would, from then on, apply to both the federal government and to state governments, also. This meant any entanglements state governments had with religion or religious institutions had to be severed.

Of course, the Court can't just arbitrarily decide the U.S. Constitution applies to more than just the federal government. They 'incorporated' the Establishment Clause to apply to both federal and state governments through the 14th Amendment, which states "... shall any state deprive any person of life, liberty, or property without due process of law ..." Under the Court's logic, this phrase meant all states had to abide by the Establishment Clause in the U.S. Constitution because this clause was construed to be part of the term 'liberty' in the 14th Amendment.

From 1947 forward, states have been forced to change many processes and laws because they did not comply with the Establishment Clause. School employees cannot lead prayers, Bible reading is limited to literary and historical purposes, tax dollars cannot be used to aid religious institutions -- much has changed in the last 66 years.

Now, back to the present day situation of North Carolina and their desire to declare a state religion. One would think this is a dead issue, as the Supreme Court has already determined the Establishment Clause applies to states as well as the federal government.

However, North Carolina and other states believe this instance is another example of the federal government intervening in the affairs of individual states, which is beyond the scope of the national government's power.  Some of what North Carolina's resolution stated was borderline ridiculous, such as their questioning that federal courts' power of judicial review.  This doesn't mean that the resolution is entirely baseless, though.

North Carolina asserts they have the right, per the 10th Amendment, to create an official religion if they so choose.  The powers of Congress in Article I, Section 8 of the Constitution do not discuss the issue of religion, therefore it falls to states to decide how to best handle it.  Although I question the wisdom of implementing an official religion, isn't that up to the people of North Carolina to determine?

Why do Americans have this strict adherence to Jefferson's 'wall of separation' phrase?  Have we forgotten that Jefferson wasn't even in attendance at the Constitutional Convention and didn't assist in the framing of the Bill of Rights?  Also, before Jefferson was president, he wrote a compelling argument in the Kentucky Resolution of 1799 that individual states had the right to nullify actions of the federal government they deemed to be unconstitutional.  I think he might be torn on what North Carolina ought to do.  

One of the key complaints of critics is the frustration many citizens would have in paying taxes that would be potentially used to support a religion to which they do not adhere.  I understand that complaint, but how often are our tax dollars used for projects and programs we detest?  I don't like when my tax dollars are used in pork projects around the nation that have no benefit, but that doesn't mean it's not constitutional.

Moreover, as much as I respect the Supreme Court, I can't help but question the entire concept of 'incorporation'.  The Due Process Clause in the 14th Amendment claims states can't deprive anyone of "life, liberty, or property" without due process, but how does establishing an official religion deprive anyone of any of those three things?  Declaring a state religion doesn't infringe upon anyone's right to worship or not worship.  It would only provide state resources for that particular faith. 

Ironically, liberals hate the notion of a state religion more than others, and hope to maintain the status quo with respect to the Court's concept of the Establishment Clause.  But, when did the Establishment Clause become some sacred cow we can't revisit?  I don't know that creating a state religion would be the best choice, but that doesn't mean it shouldn't be permitted.

Part of the uniqueness of the United States is its system of federalism that permits the national government to have the requisite strength to forge a country, but allows states to create ways of living best suited to the people of that area.  No one likes a micro-manager.

1 comment:

  1. You raise two pressing questions, the first being, How does a state having an official religion infringe anybody's rights? This implies another question, or series of questions: What do these few North Carolina lawmakers mean by "establishment" when they express support for one? Examining the news reports, it seems these lawmakers--again, only a handful of them--are answering a complaint by the ACLU that the Rowan County Commissioners opened their sessions with prayers that are 97% explicitly and exclusively Christian. That figure applies to sessions examined over several years.

    For these North Carolina lawmakers, an "establishment of religion" is not simply the right of municipal, county and state public servants to open sessions not with prayer from a rotating assortment of clergy from various religions, but to exclusively sponsor or host prayers that are exclusively of a single religion. Please not that the prayer representing a variety of faith communities is harder to defeat in court. This is not about the right to pray or host prayers by public officials in their capacity as public officials--but the alleged right to promote a single religion to the exclusion of all others.

    The other question is not what this does directly to my rights as a Hindu or other non-Christian, but what this implies about my rights and my citizenship, if my state has an official religion that is not my own. It has implied that there is a favored and a not-so-favored.

    In this case, we may quote Roger Williams, who compared society to a ship carrying people of various faiths: "It hath fallen out sometimes, that both papists and protestants, Jews and Turks, may be embarked in one ship; upon which supposal I affirm, that all the liberty of conscience, that ever I pleaded for, turns upon these two hinges--that none of the papists, protestants, Jews, or Turks, be forced to come to the ship's prayers of worship, nor compelled from their own particular prayers or worship, if they practice any." Can I get an "Amen"?