First, the North Carolina Speaker of the House
effectively killed the proposal one day after it was filed, saying it “will not
advance” to a committee hearing.
Second, even if enacted, it would not survive
constitutional scrutiny under existing Supreme Court decisions.
And third, if it did overcome both legislative and
legal barriers, it would have challenged the very underpinnings of the kind of
religious liberty we have professed to the world since 1791, when the First
Amendment was ratified, as part of the Bill of Rights.
The argument by those who favor the proposed North
Carolina designation combines “state nullification” with a constitutional
concept expressed in recent years by some in Tea Party gatherings and by other
conservative groups: that the First Amendment’s prohibition of “establishment”
of an official faith and providing protection for “free exercise” in religious
choice only applies at the federal level.
The outcome of the Civil War would seem to have
settled the whole nullification issue, though it arose again, without gaining
traction in the courts, as Southern states attempted to fight desegregation
orders and voting laws in the 1950s. The concept also went by the name
“interposition.”
The second idea — that the 45 words of the First
Amendment only apply to federal laws and the federal government — actually was
the practice until a series of U.S. Supreme Court decisions beginning in the
1890s, in which an action called “incorporation” applied to parts of the Bill
of Rights to states.
The “establishment” clause contained in the first 16
words of the First Amendment that protect freedom of religion was a late
bloomer in this incorporation process. That clause was first applied to the
states by the Supreme Court until 1947 — in a case having to do with use of
public funds in support of private religious schools in New Jersey.
Protection of the other clause of those first 16
words, “free exercise of religion” against contrary state laws came just a bit
earlier, in 1940 — generally impacting state laws requiring a declaration of
some religious faith in order to run for public office.
These kinds of proposals crop up periodically, often
combined under the label of “states’ rights, citing the 10th Amendment, or in
attacks on the reach of the “due process” provision provided by the 14th
Amendment.
While this latest legislative proposal did not
specify what faith might be declared “official,” it was titled “Rowan County,
North Carolina, Defense of Religion Act of 2013,” referring to a legal battle
in that county over the use of only Christian prayers at public meetings.
For much of the nation’s history, the use of
Christian prayers were a matter-of-course in many places where other faiths
were barely represented, if at all, or were subject to openly expressed
bigotry.
But freedom of religion – as with the other four
freedoms in the First Amendment – is not defined, supported or validated by
majority vote. Just the opposite: First Amendment freedoms protect our
individual rights from being overridden by the “majority” of citizens working
through the hand of government.
The establishment and free exercise clauses are not
present to restrain religion, privately practiced or expressed in the public
square. They exist to shield religious faiths of all kinds from intrusion by
the heavy hand of government – even if that hand purports to act benevolently.
We alone are empowered, each of us – not elected
officials, states, judges or Congress – to designate our own, personal
“official” religion.
About the author: Gene Policinski, senior vice
president and executive director of the First Amendment Center, is a veteran
journalist whose career has included work in newspapers, radio, television and
online.
This article was published by the First Amendment
Center.
No comments:
Post a Comment