In a move so stunning and foolish it makes one wonder if it is an early April hoax, Republican North Carolina state representatives Carl Ford and Harry Warren proposed a joint resolution that claims states are not subject to the "Establishment Clause" of the Constitution. Nine other Republicans have signed on as co-sponsors.
The authors of the resolution assert that it is permissible for the state to establish a state religion without violating the line of the First Amendment that says that "Congress shall make no law regarding an establishment of religion, or prohibiting the free exercise thereof," since it applies to the Federal Government, not the state or local municipalities. They also insist that the Tenth Amendment "prohibits the federal government and prohibits the federal courts from expanding the powers of the federal government beyond those powers which are explicitly enumerated." Therefore, according to the bill, the courts are out of their jurisdiction when attempting to stop prayer in public schools, commission meetings, or the public presentation of religious materials on local public property.
The bill, entitled the "ROWAN COUNTY, NORTH CAROLINA, DEFENSE OF RELIGION ACT OF 2013," appears to attempt to free the state from federal court rulings that have recently tended to scrub everything religious from the public sphere — a trend that frequently riles conservatives who see it as a similarly unconstitutional attempt to secularize society. Rowan County was recently brought into that battle after being sued by the ACLU for opening county commission meetings with "Christian prayers."
Since politicians usually have their ear to the ground as to what their constituents want, there could be a plurality of public support for this type of measure in the more religiously conservative parts of the south. Still, the chances of it getting enough support to actually pass are dubious. Even if it did get passed in the state, there is virtually no chance it would survive in court.
The real problem the lawmakers should have in getting any support for their bill is the inconsistency in their own argument. They explicitly argue that they are not legally prevented from establishing a state religion or prohibiting the free exercise of religion. Yet, why would anyone desiring to practice their own religion argue that they are not protected by the law that protects freedom of religion? If that were true and this law were upheld, all it would take for Sharia law to be imposed on these same lawmakers is if conservative Muslims (or atheists with an ironic sense of humor) were elected to their office or in the state assembly. Whether they acknowledge it or not, their line of reasoning would allow them to impose Christian Sharia on their constituents.
The sponsors of this bill also misuse and misrepresent the argument presented by staunch supporters of the Tenth Amendment. Rather than the states being free to pass unconstitutional laws as the authors of the bill argue, supporters of state nullfication claim the exact opposite; the states have the power to serve as an additional protection and check against a federal law that is itself unconstitutional.
Even if the sponsors of this legislation believed the ACLU is wrong in suing to stop prayer being offered by the members of the Rowan County Commission, their proposed "solution" is contradictory and nonsensical. It would, in the long run, rob them and everyone else, at the state and local level, of the very constitutional protections they claim are being denied them.
The best outcome for these politicians and the citizens of North Carolina would be if the official press release from both of their offices was simply: "April Fools!"