North Carolina's Proposed State Religion Isn't as Unprecedented as It Sounds

[cbayer]

http://www.theatlantic.com/politics/archive/2013/04/north-carolinas-proposed-state-religion-isnt-as-unprecedented-as-it-sounds/274646/

The history of established churches in the early United States shows why the Tar Heel State's proposal treads on precarious ground.

DAVID A. GRAHAM
APR 3 2013, 6:48 PM ET


Ye Olde New England church, in New Haven Mills, Vermont. (Dougtone/Flickr)

North Carolina is home to many great things: Beer City USA, great basketball, and the nation's best barbecue (yeah, I said it, Texas). It also has more than its fair share of zany legislators.

The latest scheme from Raleigh, via WRAL:

A bill filed by Republican lawmakers would allow North Carolina to declare an official religion, in violation of the Establishment Clause of the U.S. Bill of Rights, and seeks to nullify any federal ruling against Christian prayer by public bodies statewide.

The legislation grew out of a dispute between the American Civil Liberties Union and the Rowan County Board of Commissioners. In a federal lawsuit filed last month, the ACLU says the board has opened 97 percent of its meetings since 2007 with explicitly Christian prayers.

I know what you're thinking: That's not legal! What about the Establishment Clause of the Constitution! Well, read on:

"The Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people," the bill states.

"Each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion," it states.
You can safely file this under Not Gonna Happen. Even if the state passes the law, there's no chance it would be upheld. Philip Bump at The Atlantic Wire explains the fun circular logic going on: Yes, Marbury v. Madison established federal judicial review, but it was a federal decision so it's not binding. (The Tar Heel State could of course try seceding, but that didn't work out so well for them the first time around.)

The bill might be pointless grandstanding, but it's just one of many pointless pieces of grandstanding that signal the revival of nullification as a legal theory in the Obama years, mostly among conservatives who have claimed that states could disregard duly passed federal laws on matters like health care or gun control. (Liberals have indulged too, demanding that the feds not enforce drug laws in states that have legalized marijuana.)

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