Still reeling on the backlash from its discriminatory “bathroom bill,” North Carolina is back with yet another attack on the LGBT community.
Reps. Larry Pittman, Michael Speciale, and Carl Ford, all Republicans, on Tuesday filed House Bill 780, or the “Uphold Historical Marriage Act,” that would not only ban gay marriage in the state of North Carolina but would also not recognize existing marriage — no matter what state they were conducted in.
According to the bill, the Supreme Court “overstepped its constitutional bounds” in its landmark Obergefell v. Hodges decision in 2015, which legalized gay marriage nationwide.
The Obergefell v. Hodges ruling “exceeds the authority of the Court relative to the decree of Almighty God that ‘a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh’ (Genesis 2:24, ESV) and abrogates the clear meaning and understanding of marriage in all societies throughout prior history,” according to the bill.
If passed, the bill would bring back into effect the state constitution’s Article XIV, Section 6 Marriage Amendment of 2012, which only recognizes marriage as being between a man and a woman. HB 780 notes that this amendment was passed with a 61 percent affirmative vote.
Democratic Gov. Roy Cooper called the bill “wrong,” adding, “We need more LGBT protections, not fewer.”
Wake County Commissioner John Burns called two of the bill’s sponsors “special embarrassments.”
Pittman and Speciale are embarrassments to the State of North Carolina and should be shunned from public life. #ncpol
— John Burns (@johnburnsnc) April 11, 2017
The American Civil Liberties Union released a statement against the bill.
“Marriage equality is the law of the land in North Carolina and the entire nation, no matter what half-baked legal theories anti-LGBT lawmakers try to put forward,” said ACLU-NC Policy Director Sarah Gillooly. “This bill is absurd, unconstitutional and further proof that some North Carolina legislators remain committed to discriminating against LGBT people and their families. North Carolina lawmakers cannot defy the U.S. Supreme Court based on their extreme personal views.”
“It’s simply another version of HB2 dressed up in a way desperate lawmakers hope will save state’s economy,” said HRC President Chad Griffin.
The North Carolina Democratic Party also criticized the Republican’s efforts at discrimination.
“Republicans in the General Assembly seem to have a special talent for embarrassing themselves and our state,” the group said. “Instead of wasting their time on hateful, discriminatory and clearly unconstitutional legislation, they should be working with Governor Cooper to improve our schools and cut taxes for the middle class.”
Greg Wallace, a Campbell University law professor, said if the bill went into effect “it would be declared unconstitutional.”
“While people legitimately can disagree with the Supreme Court’s gay marriage decision a state legislature cannot overrule the Supreme Court’s interpretation of the federal constitution,” Wallace said.
Separation of Church and State
A common argument for laws that invoke religion, as HB 780 would if placed into effect, is that the widely used phrase “separation of Church and State” does not explicitly appear in the U.S. Constitution. But, according to Cornell University Law School, “The First Amendment’s Establishment Clause prohibits the government from making any law ‘respecting an establishment of religion.’ This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another.”
And to invalidate the separation of Church and State because the Constitution does not feature this exact wording is also a flawed argument because the Supreme Court serves to interpret the Constitution — meaning that if something is not exactly stated, it is up to the justices to determine what the Constitution means.
The Huffington Post explains:
“First and most basic is the fact that the Supreme Court is the ultimate interpreter of federal constitutional law. This means that while the term ‘separation of Church and State’ may never appear in the constitution itself, the Court ruling in the case of Everson v. Board of Education stated ‘the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.””
Everson v. Board of Education was a Supreme Court case that was decided in 1947. A taxpayer in New Jersey sued because a tax funded school district offered reimbursements for students who took public transportation to school, including those going to private religious schools. The reasoning was that this in effect was the state supporting religion, which is prohibited by the Constitution. The court ultimately ruled that the district was not in violation of the Constitution. However, in both the majority opinion and one of the dissents (in which all opposing judges signed on), the judges made an interpretation of the Establishment Clause. This decision became a precedent for cases to come.
According to the majority opinion, written by Justice Hugo Black:
“The ‘establishment of religion’ clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.”
And, per Justice Wiley Rutledge’s dissenting opinion:
“The matter is not one of quantity, to be measured by the amount of money expended. Now, as in Madison’s day, it is one of principle, to keep separate the separate spheres as the First Amendment drew them, to prevent the first experiment upon our liberties, and to keep the question from becoming entangled in corrosive precedents. We should not be less strict to keep strong and untarnished the one side of the shield of religious freedom than we have been of the other.”