North Carolina Republicans launch formal assault on the Constitution, seeking establishment of state religion

By Michael J.W. Stickings

Just in case you weren't quite sure Republicans are the party of Christian theocracy:

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.

Overtly Christian prayers at government meetings are not rare in North Carolina. Since the Republican takeover in 2011, the state Senate chaplain has offered an explicitly Christian invocation virtually every day of session, despite the fact that some senators are not Christian.

The First Amendment initially prohibited Congress from establishing a state religion at the federal level, but as a result of Everson v. Board of Education (1947) and other subsequent case law the Due Process Clause of the Fourteenth Amendment has come to apply to the Establishment Clause of the First, meaning that the prohibition against establishing a state religion applies not just federally but to the states as well. (It's called "Incorporation.") And there hasn't been a state religion since 1833 (Massachusetts).

The North Carolina proposal ignores all of this:

"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.

This is the "Nullification" argument that states' rights conservatives have frequently used to try to circumvent federal law, including with respect to slavery. Essentially, it posits the supremacy of the Tenth Amendment, and of course of the states themselves.

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Is DOMA dead?

By Michael J.W. Stickings

Here's Lyle Denniston of SCOTUSblog, in line with most of the initial commentary after today's oral argument:

If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence. That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.

That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail. The only barrier to such a ruling, it appeared, was the chance – an outside one, though – that the Court majority might conclude that there is no live case before it at this point.

This would be very good news. DOMA is legislated bigotry that deserves to die.

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