My Turn: Elected officials should uphold oath, obey law
Published 12:00 am Sunday, April 8, 2012
By Blaine Gorney
For the past month, government officials have embroiled us in Rowan County in a controversy over the use of secular prayer during the invocation of the County Commissioners Meetings. I would like to share some concepts of law and case law that are relevant to the discussion. I am not a constitutional attorney, merely a college professor and concerned citizen of Rowan County who understands that our elected officials should follow the laws of the land and represent all of those who are their constituents.
Under the incorporation doctrine, the Supreme Court, through relevant cases, has incorporated the rights contained in the Bill of Rights to also apply to the state and local governments, by virtue of the due process clause of the Fourteenth Amendment of the Constitution. Before the adoption of the Fourteenth Amendment, the First Amendment did not apply as a restraint against the states.
The Cantwell v. Connecticut, 310 U.S. 296 (1940), ruling prevented states from suppressing the guarantee of free exercise of religion.
Justice Owen Roberts wrote:
“The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion.
“Thus, the Amendment embraces two concepts, — freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. No one would contest the proposition that a State may not, by statute, wholly deny the right to preach or to disseminate religious views. Plainly, such a previous and absolute restraint would violate the terms of the guarantee.”
This decision made it impermissible for states to place special requirements on people engaged in spreading a religious message.
The second landmark Supreme Court case ruling, Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947), prevented states from establishing religion.
Justice Hugo Black delivered the opinion of the Court:
“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. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’ ”
The court also ruled in Reynolds v. United States, 98 U.S. 145 (1878), that if a person broke the law in pursuit of his religious duty offered that man no protection in the eyes of the law. The court’s rational was if polygamy was allowed, someone might eventually argue that human sacrifice was a necessary part of their religion, and “to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” The court believed the true spirit of the First Amendment was that Congress could not legislate against opinion but could legislate against action.
With these cases in mind, it should not be too much to ask that our elected officials at the national, state, county, or city level (including the School Board) follow the laws that they took an oath to uphold. Following the law is the ethical minimum that we as their constituents should expect and demand, in this specific case, of our County Commissioners. The Constitution calls on no higher power than “We the People.”
Blaine Gorney, Ph.D., has been in higher education for 35 years and lived in Salisbury for 30 years.