It was pretty clear what the Founders meant.
Congress shall make no law respecting an establishment of religion. Congress. Not North Carolina. North Carolina can do whatever it pleases. 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.
At least this is what the North Carolina legislators, who have just advanced a bill announcing that North Carolina can establish a state religion if it wants to, seem to think. To the legislators who have just proposed a bill to defend religion in Rowan County, the Constitution is more of a choose-your-own adventure document. You can go the strict constructionist route. You can go the loose constructionist route. You can go the route where the only part you hang onto is the part about bearing arms and you keep turning to page 36 where the text informs you that “As you fly through the air towards the river, you have one thought: ‘I hope a 400-pound bear floats!’” Up to you, really.
This all seems to have started when the ACLU sued the Rowan County Commission for always starting its meetings with a prayer. Then it escalated quickly. The bill begins: “Whereas, the Establishment Clause of the First Amendment of the Constitution of the United States reads: “…Congress shall make no law respecting an Establishment of Religion, or prohibiting the free exercise thereof;…” and Whereas, this prohibition does not apply to states, municipalities, or schools…”
Never mind the judicial precedent that’s given us the three-pronged Lemon Test (which sounds like a YouTube video I would definitely not click on) suggested by the Warren Burger court’s 1971 ruling on the Lemon v. Kurtzman case about state funding for parochial schools, requiring state statutes to meet three standards in order to avoid violating the Establishment Clause: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’”
The right to freedom of worship is enshrined pretty securely in the Constitution — but not in North Carolina.
The Establishment Clause is just another of those creeping Clauses that are taking the Christ out of Christmas.
The Constitution is nice, but — once you leave the borders of The United States and cross into a single state like North Carolina, say, it becomes more of a series of guidelines. Er, wait.