The Defense of Religion Act of 2013 didn't have a prayer.
It asked North Carolina’s General Assembly to disregard the First Amendment to the Constitution. The state representatives who introduced it didn’t expect it to pass. If it had, state law wouldn't have changed.
Thursday afternoon, House Speaker Thom Tillis declared it dead, saying there would not be a vote.
So why did it exist?
The action was a reaction — to a lawsuit that’s trying to keep Rowan County commissioners from praying before meetings. It used two constitutional amendments to make its case but ignored a third that negated it. And it was effectively written six months ago by a city councilman in Kings Mountain who was unhappy about a federal court ruling from 2011. “It is purely political,” said Dr. Michael Bitzer, a political science professor at Catawba College. “This is as if they are sticking their head in the sand and ignoring 200-plus years of legal rulings and American political philosophy.”
Roots in Prayer and A Lawsuit
In March, the American Civil Liberties Union filed a lawsuit against the Rowan County Board of Commissioners. The ACLU asserted that 97 percent of all commission meetings began with a Christian invocation, which they argue favors one religion over any others, which violates the First Amendment’s Establishment Clause.
To make their point, the ACLU cites the U.S. 4th District Court of Appeals’ 2011 ruling in Joyner v. Forsyth County, which determined that prayers before meetings are fine as long as they don’t favor a specific religion. In that case, two women objected to a county policy that allowed religious leaders to give the invocation at the beginning of commission meetings on a first-come, first-serve basis.
Commissioners argued that the policy was neutral, but the court found four-fifths of the prayers between May 2007 and December 2008 mentioned Jesus Christ, and none referenced non-Christian deities. The majority wrote:
Take-all-comers policies that do not discourage sectarian prayer will inevitably favor the majoritarian faith in the community at the expense of religious minorities living within.
The court’s ruling: Saying “God” is fine because it’s not specific to Christianity. But “Jesus,” obviously, is.
Commissioners have vowed to keep fighting the suit. At a March 18th meeting, one commissioner gave the invocation in the name of “our personal Lord and Savior, Jesus.” Several people spoke during the public comment period, both for and against the commissioners' decision to keep praying.
Thirty-nine minutes into the meeting, Kings Mountain City Councilman Keith Miller got up to speak. “I applaud you for taking a stand,” he said. “I want to help.”
Miller gave commissioners copies of what he called the Defense of Religion Act. “We may be able to do something much bigger,” he told them. “We may be able to end these lawsuits which expel God from government and put God and prayer back in schools.”
Two weeks later, on April 1, Republican state representatives Harry Warren and Carl Ford of Rowan County introduced a resolution named the Rowan County Defense of Religion Act of 2013, which was nearly identical to draft legislation Miller had included in his e-book, titled If I Were President. Miller said the act was written as a reaction to the Joyner case, and that he’d written it six months ago. He sees the case as an example of the courts overstepping their bounds. “It seems reasonable that any state could dissent to any action they deem unconstitutional,” Miller said Thursday.
“The entire purpose was to give a demonstration of support for the Rowan commission,” Warren said in a brief phone conversation Thursday before he headed to the house floor for a vote. The resolution asserts that commissioners are free to say whatever they want, and that their First Amendment right to do so didn’t end when they were elected.
The Three Amendments
But here’s where the act’s argument started to fall apart. The First Amendment prohibits Congress from passing any laws “respecting an establishment of religion,” favoring one over others — the Establishment Clause.
The Tenth Amendment says any powers not explicitly granted to the federal government are granted to the states. The Defense of Religion Act interprets those two amendments this way:
The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.
Here's the problem with that: For decades, federal courts have shot this argument down. The next part of the resolution solves that problem by telling legislators to simply ignore the federal courts:
The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.
In fact, you have to believe in God to be elected to office in North Carolina, according to Article IV, Section 8 of the state constitution:
The following persons shall be disqualified for office: First, any person who shall deny the being of Almighty God.
Before you think of this as some arcane part of the constitution that nobody pays attention to anymore, consider that in 2009, the former head of the NAACP in Asheville, tried to keep an atheist, Cecil Bothwell, from taking his seat on the City Council. “I'm not saying that Cecil Bothwell is not a good man,” H.K. Edgerton told the Asheville Citizen-Times at the time, “but if he's an atheist, he's not eligible to serve in public office, according to the state constitution.”
That clashes with Article VI of the U.S. Constitution:
No religious test shall ever be required as a qualification to any office or public trust under the United States.
“I had lawyers absolutely eager to take this to court,” Bothwell says. No lawsuit was ever filed.
Edgerton’s argument didn’t work, and the argument for the Defense of Religion Act wouldn't work, because of another amendment not mentioned in the resolution: the Fourteenth, ratified in 1868. It says if a state gets into a constitutional fight with the feds, the feds win. Here’s the crucial part:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
The amendment guarantees that if you have freedom of speech, you have it in every state, regardless of what that state’s legislative body does. If Congress “shall make no law respecting an establishment of religion,” neither can the states.
“The First Amendment uses that term, Congress. It speaks only to what Congress can do,” says Jeanette Doran, executive director of the non-partisan North Carolina Institute for Constitutional Law. "The fourteenth amendment has been interpreted for decades now to prohibit state and local governments from doing the same thing Congress has been prohibited from doing.”
There’s something else. “A lot of people overlook the fact that there’s a part of the [state] constitution that affirms allegiance to the United States,” says Doran, who says this section was added in 1868 as well, during Reconstruction:
Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force.
Boiled down, the resolution citeed the First and Tenth amendments to make its argument but conveniently ignored the Fourteenth, which nullified the argument. It also argued that state law can supersede federal law — even though the state constitution itself says explicitly that it cannot.
What If It Passed?
If bills pass, they become law. What happens when resolutions pass? Nothing. Resolutions are meant to honor or recognize people or institutions or express the general sense of the legislature. The Defense of Religion Act was “basically worth the paper it’s printed on,” Bitzer says.
Rep. Warren admitted this. “When Rep. Ford brought me the resolution, I read through it very quickly,” he said. “I didn’t think it would go beyond being read [on the floor of the house].” The resolution was referred to the House Rules Committee, where chairman Tim Moore said Wednesday that his committee wouldn't consider the resolution in its current form. On Thursday afternoon, Tillis killed it.
Warren disagrees with headlines in The Huffington Post, Forbes and CNN that claimed the Defense of Religion Act could have allowed North Carolina to establish a state religion. “I had no idea some of the media would do such an unresponsible (sic) job of vetting,” he said.
Doran also thinks the resolution wouldn't have started a state religion. She thinks it was a response to concern over the power of the federal government and evidence of frustration by the religious over the places where they can and can’t worship. “It’s articulating concerns of the general public and the voters at large,” she says. “To that end, I think that’s part of the American culture of discourse.”
“It’s my understanding that the courts use the Fourteenth Amendment to make rather wide-reaching opinions,” Miller said. He pointed to a chapter in his e-book where he sums up the resolution’s purpose:
DORA helps to deapothosize the myth that the Supreme Court is the final arbiter of constitutionality. This helps disarm harmful judicial interventions, weaken the court’s oligarchic tyranny, and make it more difficult for Satan to control and mislead America.
The lawmakers themselves saw it as a sign of support for commissioners and their prayers. “One man called me and said, ‘This is the craziest thing I’ve ever heard,’” Ford told The Salisbury Post. “I said, ‘Is it as crazy as the lawsuit?’”