“Congress shall make no law respecting an establishment of religion, or preventing the free exercise thereof.” Congress. The writers of the First Amendment of the U.S. federal Constitution were obviously excluding the state governments. Even so, the U.S. Supreme Court has established that the amendment applies to the states as well as Congress. From Lemon v. Kurtzman (1971), the Court gave us what is known as the Lemon test. State funding for parochial schools (e.g., Catholic schools) must have a secular legislative purpose (e.g., education), neither advance nor inhibit religion in its consequences, and not foster “an excessive government entanglement with religion.” Yet the leap in claiming that the amendment bears on the states must deal with the explicit language of “Congress shall make no law.”
When the 13 original American states that formed the United States had been colonies, Calvinism was the “state religion” in all of the New England Confederation, which excluded Rhode Island on account of its freedom of religion. Pennsylvania was known as the Quaker experiment. Maryland was heavily Catholic. Virginia was Anglican. New Jersey split in two for a few decades in the late seventeenth century, with the Calvinists taking East New Jersey and the Quakers taking West New Jersey. Even by the time the U.S. Constitution was being considered, the notion of a state religion in a particular state would have been familiar to most Americans. The U.S. Supreme Court’s precedent seems artificial in comparison.
Even so, the North Carolina General Assembly would have gone too far had it passed the bill stating in part that 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.” The bill also states that the U.S. Constitution does not prohibit states from making laws respecting an establishment of religion. While this assertion is probably correct in theory, the precedent set down by the U.S. Supreme Court makes the prohibition the law of the land. Refusing to recognize the U.S. Supreme Court as bearing on the states harkens back to the Nullification Crisis centered on South Carolina. President Jackson pointed out that the Union would not long last if the states could decide for themselves whether they would be bound by federal law.
Rep. Carl Ford of the NC Assembly. He proposed the bill that would have sidelined the U.S. Supreme Court and paved the way for Christianity as the state's official religion.
The challenge is to get back to the wording, “Congress shall make no law,” without throwing out the U.S. Supreme Court. Proposing state laws, whether on religion or abortion, that are obviously unconstitutional under the Court’s rulings makes a state body look foolish. Rather than having selective amnesia, state representatives could seek to reverse the Court’s precedent either through the consent power of U.S. senators or by proposing a federal constitutional amendment. The first route may require state governments to have greater sway over the senators. Originally, they were to represent their respective states by representing the governments.
In terms of an official religion at the state level, Utah would obviously be Morman, but not every state has such a concentration of one particular denomination. Nor is religion itself equally strong in every state. Not every state would want to institute an official religion. All of this suggests that the United States would be a richer quilt to the extent that states can differ on religion as a phenomenon and with respect to the particular religions. Put another way, the U.S., being imperial in scale, is innately more diverse than can be seen by the extent of one-size-fits-all Congressional action. Allowing the states to fulfill their particularities more fully would make the U.S. itself a richer tapestry and thus a strong union.
If some of the American republics in the U.S. were to have established state religions, a person in the minority in one of those states might feel more like an outsider in one’s own town. Being a non-Mormon in Utah would be even harder were Mormonism the official state religion. However, is it not already awkward for atheists in the small towns of several states, such as Alabama and Mississippi? Is there really so much difference between an overwhelmingly Christian population and making Christianity the official state religion? It would not be as though the heretics could legally be burned alive. To counter any unfairness more generally, equal protection under the law and due process could be used in a non-Christian’s defense.
I would even say that it should not be the case that the typical American feels equally at home in every state, for that would mean that the one-size-fits-all approach of Congress has effectively homogenized an empire that is inherently diverse. In terms of historical political theory, an empire is “different in kind” (i.e., qualitatively) than the kingdom-level on the next scale down. It is not only that an empire is larger than a kingdom (i.e., quantitatively). Whereas a kingdom is only large enough that it may or may not be diverse within, an empire by definition consists of kingdom-level polities and is thus inherently diverse because kingdoms are different. From the beginning, the American colonies/states were mapped on the scale of the then-extant early-modern kingdoms in Europe. The European countries and American republics generally are comparable. France is a bit smaller than Texas, Germany is roughly the size of Montana, Spain matches Arizona and Italy is the size of California. Among the respective smaller states, Malta, Luxemburg, and Cyprus cluster with Rhode Island, Delaware, and New Jersey. Belgium and Maryland are both mid-sized states in their respective unions. To compare the U.S. and France or the E.U. and Texas thus evinces a category mistake. Flawed conclusions should be expected.
The United States altogether thus form an empire, which is composed of kingdom-level polities/cultures/territories. We should not be surprised to find that the culture in Texas differs from that of Massachusetts, for example. One of the benefits of living in the U.S. is that one can live in a republic that fits one’s ideology or lifestyle. For example, a gay person can move to a culture such as Massachusetts or California in which greater acceptance exists. People in the majority cultures in Oklahoma and Arkansas would not have to be pushed into changing their respective cultures into accepting homosexuality, though the marriages made in the other states would have to be recognized due to the full faith and credit clause of the U.S. Constitution. A fuller happiness for both gays and traditionalists/Biblicalists would result if each can find a fitting environment than would be the case were Congress to pass an empire-wide one-size-fits-all “solution.” Were it made under one giant compromise, U.S.-wide, it is likely that the result is not a fit for any American. Moreover, to suppose that every state should be virtually the same just because the U.S. is recognized as “a” country ignores the intrinsic diversity that exists within an empire-scale complex-polity. Even the poll finding that roughly a third of Americans want Christianity to be the official religion in their own state cannot be generalized using a broad brush across the United States. I suspect that a much higher percentage of Arkansans than New Yorkers or Californians want Christianity to be their official religion.
In short, the establishment of state religions in some of the states even as strong majorities in other states prefer their respective cultures (and governments) to remain primarily secular would provide a closer fit for not only the people involved, but also the diversity that exists anyway within an empire that is composed of kingdoms and/or republics. To treat an empire as though it were synonymous with one of its republics or kingdoms evinces a category mistake. The benefits of diversity that can be enjoyed within an empire are threatened when Congress makes the mistake by acting like a state legislature. Put another way, the United States would be stronger were the strictures relaxed such that they could more fully manifest their uniqueness. Seeing a strip-mall with a McDonalds restaurant in every town from coast to coast is appreciably more bland. “Sameness” multiplied across a continent is not only tiring; it fails to take advantage of the inherent diversity that springs from distance and more than one government. One need only look at the E.U. states to get a sense of how little distance is necessary for culture to differ. Even though the North Carolina’s General Assembly was pursuing a foolish strategy in proposing a bill that would have the government ignore the U.S. Supreme Court when convenient, the presumed article of separation between church and state at the state level can and should be re-considered.
John Celock, “North Carolina House Speaker Kills Bill to Create State Religion,” The Huffington Post, April 4, 2013.
Emily Swanson, “Christianity As State Religion Supported By One-Third of Americans, Poll Finds,” The Huffington Post, April 6, 2013.