Officials: House religion resolution is symbolic

Apr. 04, 2013 @ 04:12 PM

A joint resolution read in the N.C. House of Representatives on Tuesday declares that the state does not recognize the authority of federal judicial opinions. 

The resolution argues that the 10th amendment, which states that powers not delegated to the federal government by the Constitution, nor prohibited by the Constitution to the states, are reserved for the states or the people. The resolution states that because of the 10th amendment, the First Amendment applies only to the federal government and not states and municipalities. 

Therefore, the resolution states that the Constitution does not prohibit states or their subsidiaries from making laws respecting an establishment of religion and that it does not recognize federal court rulings that prohibit and regulate North Carolina from making laws respecting an establishment of religion.

The resolution is in response to a lawsuit between the American Civil Liberties Union (ACLU) and Rowan County with regard to saying sectarian prayers before public meetings. 

“I think that the bill sponsors fundamentally misunderstand constitutional law and the principles of separation of powers that date back to the founding of this country,” ACLU of North Carolina Legal Director Chris Brook said. 

The First Amendment applies to North Carolina and its subsidiaries, he said. “That is a fact that has been uncontroversial for generations.” 

It has served our nation and our state well for decades, he added.

The argument that the 10th Amendment releases the states from the First Amendment has been rejected many times, Brook said.

“It’s frankly, not a serious constitutional argument,” Brook said. 

The 14th Amendment was later used to apply things that the federal government did to all of the states, using the “incorporation clause,” Wingate University Political Science Professor Joseph Ellis said. Because of the amendment, issues of speech, expression and religion that was once only the purview of the federal government, applied to the states. 

“For some jurists, there is still a lot of argument about incorporation,” Ellis said. 

However, the argument of state and federal powers dates back to the early 1800s with Vice President John C. Calhoun. 

“Basically, there was an idea that came about in the early 1800s, part of what you could call the state’s rights movement, that states could concurrently check acts of Congress,” Ellis said. “Calhoun was pushing back against what he thought was (President Andrew Jackson’s) overtake of the federal government.” 

Ellis noted that the resolution is a reaction to the situation in Rowan County, though not completely without precedent.

“What they’re doing, regardless of what you think about it, is not something totally unusual,” Ellis said. “It’s something that southerners in particular have argued about...for hundreds of years.” 

Because it is a resolution, it is unclear what impact, if any, it would have, Brook said. 

“It seems to me it’s likely just some sort of a statement of the legislature’s opinion on this matter as opposed to a binding statute,” Brook said. “Having said that, if it were ever put into place or put into effect, the resolution is plainly unconstitutional and would be struck down by any court that reviewed it.” 

Rep. Craig Horn, R-68, also believes the resolution is symbolic.

“I think there’s a serious constitutional question, as has been related to me by attorneys in our house,” Horn said. He said there has been almost no discussion on the issue since the resolution has filed. 

The legislature opens each session with a prayer, which Horn said are sometimes sectarian. He said they rotate who says the prayer and there has been to attempt to regulate, prohibit or direct how one is to word their prayer. 

The resolution has been sent to the rules committee. 

“A lot goes into the rules committee, not a lot goes out of the rules committee,” Horn said. 

Union County Board of Commissioners Chairman Jerry Simpson said they are still saying a prayer before every meeting, despite a letter they received a few months ago from the Freedom From Religion Foundation. 

Each meeting, prayer is the responsibility of a different commissioner, he said. 

“They have a choice. They can get someone to do their invocation, they can do it themselves...I don’t tell them what to do and they certainly don’t tell me,” Simpson said. 

He said he has not been paying attention to the house resolution. 

Brook said the resolution has implications beyond religion. 

“It’s much broader than just the first amendment,” Brook said. “It’s basically saying that the state of North Carolina does not have to abide by or recognize federal judicial opinions and that would have grievous consequences in both the First Amendment content, but in regards to a number of different rights we take for granted. 

“Everyone, regardless of their position on the ideological spectrum, should feel very uncomfortable with this,” Brook said.