North Carolina Legislators Arguing That the Establishment Clause Should Be Seen as Not Incorporated Against the States by the Fourteenth Amendment

A bunch of readers pointed me to a North Carolina bill that would express the legislators’ view that the Establishment Clause shouldn’t be seen as applicable to the states, so I thought I’d offer some general thoughts about the subject. Here is the bill, in relevant part:

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.

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.

Recall that the Bill of Rights originally didn’t apply to the states, and indeed several states (not including North Carolina) had official establishments of religion at the time the Bill of Rights was enacted, with the last being disestablished in the 1830s. It’s the Fourteenth Amendment that has been read as applying the Bill of Rights to the states, through its statement that “nor shall any State deprive any person of life, liberty, or property, without due process of law,” though many scholars and some judges have argued that the incorporation should have taken place through another clause of the Amendment, “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

And a few scholars and judges have indeed argued that this language should not be read as incorporating the Establishment Clause; the most prominent examples have been Justice Thomas and Prof. Akhil Amar. The chief argument for this view is that the Establishment Clause was originally understood as a federalism guarantee, with the ban on federal laws “respecting an establishment of religion” meaning that the federal government could neither establish a national religion nor disestablish (or otherwise modify) state establishments of religion. Another possible argument is that the Establishment Clause differs from most Bill of Rights guarantees in that much action that is seen as violating the Establishment Clause — such as government endorsement of religious messages and symbols — doesn’t deprive anyone of liberty, or abridge any citizen’s privileges or immunities. (Action that does directly implicate people’s liberty, such as coercion of religious practice, might be prohibited by other provisions, such as the Free Exercise Clause and Free Speech Clause, which have been relatively uncontroversially incorporated against the states; likewise, action that denies people tangible benefits based on their denomination or their irreligiosity might be seen as prohibited by the Free Exercise Clause or the Equal Protection Clause.) The North Carolina legislators seem to be siding with this position.

Of course, state law can’t trump federal court decisions on this, and if a federal court orders state officials to (for instance) discontinue certain kinds of prayers at the start of city council meetings, or to remove some monument, state officials will still have to follow such a court order. And if the “does not recognize federal court rulings” language proposal is read as a call for outright disobedience of court orders on such matters, that would be bad. In theory, government officials’ disobedience of court orders may be proper, in cases of extreme moral urgency, despite the damage that such disobedience does to the rule of law; but it’s hard for me to see this as such a case.

But if that language means that the legislators aren’t actually trying to call for refusal to enforce court orders, but are just trying to get the North Carolina Legislature to express its view that the decisions incorporating the Establishment Clause are unsound and even illegitimate, then the proposal becomes just a political statement in favor of the “Establishment Clause is not incorporated” position. The legislators’ hope, under this reading, would be that over time this stance — presumably coupled with similar stances in other states — will influence the Supreme Court to change its view.

The proposal would thus be part of a conversation about what the law ought to be, a conversation in which the Supreme Court generally has the final legal voice (subject to the Article V amendment process, the President’s power to nominate new Justices, and similar constraints) but in which it rightly can’t have the final political voice. And there are plausible original meaning arguments and plausible political morality and prudence arguments in favor of the “no incorporation of the Establishment Clause” view, though of course also plausible arguments against that view. (As a policy matter, I think the country would be better off without legislative prayers, and even without “under God” in the Pledge of Allegiance and Ten Commandments monuments. But I’m not sure that the country is better off as a result of the federal courts’ decision to police such matters, especially at the state and local level — it may well be that the incorporation of the Establishment Clause, especially as to government speech, has caused more religious tension than it has prevented.)

UPDATE: I originally said “several states (not including North Carolina) had official establishments of religion until the 1830s,” but a commenter correctly pointed out that, though several states had official establishments after the Bill of Rights, only one — Massachusetts — endured into the 1830s.