Blog Post

April Fools' in North Carolina? Legally speaking, the firestorm over the North Carolina resolution is much ado about nothing. But this ado should remind us of the lessons, good and bad, we have learned from more than 200 years as one nation under the Establishment Clause.

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Ryan Colby 202-349-7219 media@becketlaw.org

Legally speaking, the firestorm over the North Carolina resolution is much ado about nothing. But this ado should remind us of the lessons, good and bad, we have learned from more than 200 years as one nation under the Establishment Clause.

The latest church-state firestorm is over several North Carolina legislators’ proposed resolution that proclaims North Carolina’s right to establish a state religion. One can only hope that its introduction on April Fools’ Day was not a coincidence.

If you thought we settled the issue of official state-run churches years ago, you were right. The Establishment Clause prohibits the creation of an official state religion. It originally applied only to Congress, and some states famously kept their own established churches into the mid-nineteenth century. (Massachusetts was the last to shut down its state church.) In 1947, the Supreme Court declared the Establishment Clause applicable to the states, which means that North Carolina has no power to set up a state church. While serious scholars have raised questions about whether the Establishment Clause should apply to the states, one thing remains clear: states cannot run their own official churches. History shows us it’s bad for states, and bad for churches.

The good news about the North Carolina law, for all its rhetoric, is that it has no legal effect whatsoever. It is a non-binding resolution, stating the feelings of some in the legislature, but with no power to impact the state’s laws or its citizens. In that way it is the twin of what San Francisco did several years ago, when it passed a resolution condemning the Catholic Church and calling on its priests to disobey Church teachings on same-sex marriage. Both proposals were perfectly obnoxious, and completely toothless.

The stated reason for the proposal is to permit legislatures to open their meetings with prayer. Legislative prayers are an intriguing and important legal issue: the Supreme Court has permitted them in Congress, and lower courts have split over what prayers can be said at city councils, school boards, and other meetings. But this resolution is more likely to hinder than help with that issue–by affirmatively stating that some in government are trying to promote a particular faith, the resolution will make it harder, not easier, to win legislative prayer cases in court.

There are real reasons to be worried about Establishment Clause overreach. It has been used to challenge a South Carolina law that allows private, off-campus religious classes for public school students; a federal law that protects the First Amendment rights of prisoners; and an Arizona scholarship program that helps students attend the schools that are best for them. Happily, the courts beat back each of these challenges. But they demonstrate that extreme readings of the Establishment Clause can do real harm to programs that help real people. The North Carolina resolution merely shows us that bad legal advice is not limited to one side of the Establishment Clause debate.

Legally speaking, the firestorm over the North Carolina resolution is much ado about nothing. But this ado should remind us of the lessons, good and bad, we have learned from more than 200 years as one nation under the Establishment Clause.