Can North Carolina Make Christianity Its Official Religion?

North Carolina legislators recently made an ill-fated attempt to introduce Christianity as the state’s official religion. The move was precipitated by an ACLU lawsuit against the Rowan County Board of Commissioners, a board notorious for allowing people to utter Jesus’s name in prayers at their meetings. The establishment proposal generated a predictably breathless response from the left. WaPo’s Alexandra Petri sarcastically wrote, “The North Carolina state legislature can totally establish a state religion. The Founders specifically said so in Article III, in the part where the letters “EXCEPT NORTH CAROLINA CAN DO WHAT IT WANTS” appear in bold flashing letters.”

I certainly do not expect a history lesson on church-state separation and the establishment clause from Petri, a humor columnist, but she offers one nonetheless, and nowhere mentions the fact that the First Amendment, as originally written and interpreted, unequivocally gave the states the right to maintain their establishments of religion, which most of them had going back into the colonial period. “Congress shall make no law respecting an establishment of religion,” the amendment said, meaning that the national government would create no national denomination (unlike what Mother Britain had in the Church of England, which was also the established church of the southern colonies).

As I discussed in God of Liberty, many states started phasing out state-supported denominations after the Revolution and Constitution, but the New England states (minus Rhode Island, which never had an established church) kept theirs. In Massachusetts, the Congregationalist Church remained established until 1833, when the growth of Unitarians, Methodists, Baptists, and other groups made the establishment untenable. But it was not “unconstitutional” in today’s sense.

In Thomas Jefferson’s famous “wall of separation” letter in 1802, he was sympathizing with Connecticut evangelical Baptists who wished that their state would drop its establishment. He commended the First Amendment as building a “wall of separation between church and state” on the national level, and hoped to see the “progress of those sentiments” in the states, as well. Jefferson, the deistic skeptic, and his evangelical Baptists admirers were delighted when Connecticut dropped its establishment in 1818.

So state establishments of religion – not just saying ‘Jesus’ in public prayers, mind you, but taxpayer-funded denominations – remained constitutional well after the adoption of the First Amendment. So when did they become unconstitutional? Some observers have pointed to the 14th Amendment as a key turning point, because that amendment required the states to guarantee citizens due process and equal protection of the laws. This is partly true, but the application of the 14th Amendment to the establishment clause (technically, the “incorporation” of the clause against the states) did not begin until eight decades after the passage of the 14th Amendment, in the case of Everson v. Board of Education (1947), in which Justice Hugo Black used an expansive reading Jefferson’s wall of separation metaphor as the definitive interpretation of establishment clause for both the national government, and the states. (Never mind that Jefferson was not involved with the framing of the Constitution or the First Amendment.)

For the record, I categorically oppose creating state establishments of religion, because we should be worrying about maximizing religious liberty rather than re-creating establishments. Actual establishments of religion (i.e. state churches), as Jefferson’s Baptist friends knew, are usually not great at protecting religious freedom. But there is a serious historical argument behind the idea that the First Amendment, at least prior to 1947, would allow state establishments of religion.

Of course, no one in North Carolina’s debate is talking about tax funds going to pay pastors’ salaries. The real issue there is whether uttering Jesus’s name in a public meeting represents an establishment of religion. As I have written previously, saying Jesus’s name at county council meetings may be bad religious manners, and an injudicious or even politically cheap use of the Lord’s name. But the framers of the First Amendment never could have imagined that one day secularists would argue that saying Jesus’s name in a public setting should be banned by the establishment clause.

  • http://lincolnmullen.com Lincoln Mullen

    I’m with you all the way on the history, of course. I only want to add one detail, which is an explanation of why it took till 1940 to incorporate the Free Exercise Clause in Cantwell v. Connecticut and and till 1947 to incorporate the Establishment Clause in Everson v. Board of Education. As you point out, the Fourteenth Amendment, on its face, makes the First Amendment apply to the states via the “privileges and immunities clause.” But the Supreme Court mostly emasculated that clause in the 1873 Slaughterhouse Cases. Now those First Amendment rights are held to apply to the states through the doctrine of selective incorporation. The point is well-made that the First Amendment did not apply to the states until Reconstruction. But it’s not as if the 1947 decision came from nowhere: there was ample political, though not juridicial, precedent for regarding establishments of religion as unconstitutional since Reconstruction.

    • https://twitter.com/#!/ThomasSKidd Thomas Kidd

      Lincoln, thanks for this – tell me more, if you get a chance, about the “ample political precedents”? I want to make sure I know what you mean.

  • Greg Metzger

    Well done.

    • https://twitter.com/#!/ThomasSKidd Thomas Kidd

      thanks Greg!

  • Ron Schooler

    Let’s look at this issue from the point of view of Christians living as the majority group within a number of minority religions and the non-religious. You have ample evidence and logic to argue that the First Amendment could be interpreted to allow government boards to have prayers and to pray in Jesus name. They can do this even though there are those who find it offensive and appeal to the First Amendment to have it stopped.

    So, what should Christians do about the hubbub? You say it “may be bad religious manners, and an injudicious or even politically cheap use of the Lord’s name.” But, I get the feeling, since it most likely is Constitutionally protected, they should not be mocked or pilloried. But in Jesus name, why are we not counting our bad manners, our injudiciousness, and our taking of the Lord’s name in vain to be sins worth pointing out? I understand that Christians in America have seen their majority status slip and are perplexed by it. But. are we not about being light and salt? Are we not about showing our good works that those on the outside would want in? These unmannerly actions–seemingly to regain our former status–are counterproductive to evangelism. Why can’t we answer those who would want Jesus’ name left out of the official part of public meetings (even though it has been traditional to do so), by saying, “For your sake I will refrain.” That would speak the grace of God. WWJD?

  • Brian Westley

    The real issue there is whether uttering Jesus’s name in a public meeting represents an establishment of religion.

    So far, the courts have said yes, it does constitute an establishment, although your way of phrasing it is misleading. Specifically, it’s when such prayers are part of official business — if a public meeting has an open mic portion, that would not be covered, as just one example.

    Oh, and in reading your earlier article, you (as well as most people) got the lawsuit over Obama’s oath wrong — the lawsuit was NOT against Obama but against Justice Roberts, to not add “so help me god” to the oath when he administered it, because that isn’t part of the official oath of office for president. The chief justice doesn’t have authority to change the oath.

    • https://twitter.com/#!/ThomasSKidd Thomas Kidd

      There’s been no definitive ruling about prayers at public meetings, as opposed to school prayer. Secularists keep suing because they hope to precipitate a definitive ruling.

  • thin-ice

    As one who was a missionary and evangelical christian for 46 years, but finally saw the light and de-converted, please understand: you have all the freedom you want to pray wherever and whenever you want. Just keep your Jesus prayers out of official government, whether it’s federal, state or local. Have it before the meeting is convened, but don’t force me to listen to your sectarian prayers during the meeting, OK?

    Oh, and BTW, the latest polls show that 31% of Americans under the age of 30 claim no religious affiliation, and don’t attend any church. That is by far the largest segment of that age group. That proportion of the population is only going to grow larger, so please get used to the increasing secularization of American culture. And it doesn’t mean that our culture is doomed because we are increasingly discarding the concept of God.

  • http://divinity.uchicago.edu/martycenter/publications/sightings/archive_2013/0411.shtml Nathan C. Walker

    NC disestablished the Church of England as its colonial state religion fifteen years before the states ratified the U.S. Bill of Rights. Ironically, North Carolina was far more progressive in its disestablishment of religion than Congress. Cheers, Nate

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