It's generally true that most lawmakers are lawyers, or at least are familiar with the law. It appears, however, that that may not be the case in North Carolina, where at least 11 Republicans sponsored a clearly unconstitutional bill that would allow North Carolina to declare Christianity its state religion by arguing that the First Amendment doesn't apply to states.
One of the basics of constitutional law is that the Fourteenth Amendment (the one extending citizenship to former slaves) makes it clear that states are required to follow the U.S. Constitution, at least the provisions of the Bill of Rights.
The relevant section is called the Equal Protection Clause, and it reads:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The purpose at the time was primarily to overturn Jim Crow laws, such as the barring of blacks from juries in West Virginia. But it has since been used much more broadly, to protect the infringement of citizen's fundamental rights as contained in the Bill or Rights.
Of course, the First Amendment of the Bill of Rights guarantees freedom of speech and religion. There is no more fundamental right in American tradition than the freedom to worship (it was numbered first for a reason). The First Amendment states, in its entirety:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Key in it is the Establishment Clause, which prevents the government from establishing a state religion.
Again, the Fourteenth Amendment means that states, and their divisions, need to respect all fundamental liberties of their citizens. But this point is apparently lost on some in North Carolina where the resolution with 11 Republican sponsors reads:
SECTION 1. 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.
SECTION 2. 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.
The reason for this clearly unconstitutional proposal is to establish Christianity as the official religion of North Carolina and ensure that all prayers offered at the beginning of meetings can be Christian ones. The ACLU recently filed a lawsuit charging the Rowan County Board of Commissioners with breaching the Establishment Clause by having 97% Christian prayers at their meetings, and some in the state capitol are trying to run around this.
Hopefully those with a basic understanding of the US Constitution kill the resolution in committee, where it currently is, but if not it certainly can't be upheld by any federal court. A better proposal might be to require some basic civics classes for the Republican cosponsors. I'm sure CAIR or the ACLU would be happy to oblige.
Todd Gallinger is the director of chapter development at CAIR's national headquarters in Washington, D.C.