Sometimes there are news stories so over the top, so outrageous, that you double-check just to ensure you haven’t lost your mind. At times these stories involve incredibly weird acts with peanut butter jars and human orifices, other times, it’s North Carolina legislators trying to write laws.
According to the Huffington Post, a bill was filed Monday, April 1st, by two GOP lawmakers from Rowan County, NC and backed by nine other Republicans (including the Majority Leader) that would effectively allow the state of North Carolina to declare an ‘established’ religion. The April 1st date could be indicative of the joking nature of the thing, but they appear to be serious as a heart attack. They use proud state secessionist type speech that we really haven’t heard since those Halcyon days of the Civil War (that Recent Unpleasantness, by the way, left over half a million of our fellow citizens dead or about 620,000 …keep that figure in mind, we’ll be coming back to it).
Here are the two relevant sections from the bill:
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.
Even those of us who aren’t lawyers—much less state legislators– are passingly familiar with the First Amendment and what is commonly known as the Establishment Clause. This clause expressly prohibits Congress from passing laws respecting the establishment of religion or prohibiting the free exercise of religion in America. The North Carolina GOP’s argument, in all its simplicity, appears to be that the Establishment Clause does not apply to the states. Well, the kindest thing you can say is that the argument is courageous; in the same way that sticking your tongue to a steel pole in sub-zero temperatures is courageous. It’s not something you cheer: you just have to wonder what’s going on with that person. And you hope they get better soon.
As recently as 1971, a similar effort was soundly repudiated in Lemon v. Kurtzman. In that case, the U.S. Supreme Court established the three-pronged test—called “The Lemon Test”— for determining when a state has run afoul of the First Amendment’s Establishment Clause:
• The law or state policy must have been adopted with a neutral or non-religious purpose.
• The principle or primary effect must be one that neither advances nor inhibits religion.
• The statute or policy must not result in an “excessive entanglement” of government with religion.
The Lemon test, by the way, has been upheld as recently as 2005 –even under our extremely conservative SCOTUS in McCreary County v. American Civil Liberties Union.
So passage of such a law in North Carolina has zero chance of surviving a constitutional challenge which apparently is beside the point. After all, this is the same state that continues to hold a provision in its State Constitution requiring that candidates for state office profess their belief in God. This despite the Supreme Court’s ruling in Torcaso v. Watkins, 367 U.S. 488 (1961) which held that such a law violates the First and Fourteenth Amendments to the United States Constitution. To wit:
“We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person “to profess a belief or disbelief in any religion.” Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.”
North Carolina’s response? … Crickets. They have not modified their State Constitution an iota in order to accord themselves with the law of the land.
This is a problem. It’s the same kind of problem we see in Mississippi where there’s a proposal to establish a state board with the power to nullify federal laws; and with legislation recently introduced in North Carolina by state Representative Larry Pittman (R-Concord), touting a state constitutional amendment that would allow for carrying concealed weapons to fight federal “tyranny.” Our own state, Virginia, is currently refusing millions in federal aid (even as we slash necessary local programs) in a pyrrhic effort to evade Obamacare, as if refusing federal funds for sick and poor people were a great and noble cause (right up there with defending slavery). All of these efforts are generated in a cloud of rightwing paranoia of the U.N. black helicopter variety. If they were merely childish, albeit costly efforts that would simply wither on the vine, it would probably be safe to disregard them, but what years ago would have been casually ignored as the lunatic fringe has now become the Republican party’s base. At the state level, this kind of rhetoric is quickly becoming standard operating procedure.
Progressives like to believe in an arrow to history, a teleological end point; but in reality for every few steps forward there are usually two or three steps back. Progress tends to be more evolutionary—in Stephen Gould’s sense of the matter– with bad or useless things hanging around that really shouldn’t— kind of like our appendices. Most gains are compromises with something slightly disingenuous or dysfunctional (think of Obamacare’s deep entanglement with an expensive and nearly useless private insurance overlay). Unfortunately, it’s difficult to imagine what can ameliorate the poisonous assumptions that are being made at the state level today. These are not compromise positions, but deeply atavistic nonnegotiables that aim to undermine the whole. They are symptoms of a malaise that surfaced nearly 150 years ago, at the cost of over half a million lives, and look to be trending once again. I suspect, unless roundly ridiculed, it might come back like Nietzsche’s eternal return, or worse, like Newt Gingrich (God help us).
We can only hope that, like the infamous Darwin awards, these Southern statesmen will do the human race a favor by self-selecting themselves out of our legal gene pools—through foolish acts, like sticking their tongues to freezing steel poles, or forgetting who won the Civil War.