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Clarence Thomas and State Theocracy

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This week marks the anniversary of the US Supreme Court avoiding the core issue in the so-called “pledge case.” What may prove more notable is that it is also the anniversary of Clarence Thomas announcing a First Amendment jurisprudence that supports state theocracy, a theory he recently reaffirmed.

The issue that generated public interest in the pledge case was whether a public school policy requiring teachers to lead students in reciting the Pledge of Allegiance violated the Establishment Clause of the First Amendment because of the words “under God.” In its entirety, the Establishment Clause states, “Congress shall make no law respecting an establishment of religion.” Although it refers only to Congress, more than 50 years ago the Supreme Court said the clause applies to the states because of its “incorporation” into the 14th Amendment. (Virtually all provisions of the Bill of Rights have been applied to the states through this “incorporation” process.)

Thomas agreed with the Court’s ultimate opinion that the parent who brought the pledge lawsuit did not have “standing” to do so. However, he wrote a separate concurring opinion in which he basically urged overturning 50+ years of Establishment Clause jurisprudence. After admitting that “the Pledge policy is unconstitutional” under existing law, he argued that law is wrong. He said:

Quite simply, the Establishment Clause is best understood as a federalism provision — it protects state establishments from federal interference but does not protect any individual rights. . . . .

[E]ven assuming that the Establishment Clause precludes the Federal Government from establishing a national religion, it does not follow that the Clause created or protects any individual right. . . . it is more likely that States and only States were the direct beneficiaries. Moreover, incorporation of this putative individual right leads to a particular outcome: It would prohibit precisely what the Establishment Clause was intended to protect — state establishments of religion.

(Italics in original; underlining added).

Realizing established jurisprudence rendered the policy unconstitutional, Thomas advocated overturning that precedent. (What’s that we keep hearing from convervatives about “activist judges”?) Not only that, he wants to truly turn the law on his head, saying the Establishment Clause was designed to protect states if they want to establish religion. According to Thomas, as long as it does not use coercion against individuals, each state can adopt or establish religion largely free from interference, intervention or review by the federal government.

He reiterated this position in a May 31 decision and it appears he’s finding support among the states. Thomas again voiced his views in a concurring opinion, this one in a case from Ohio interpreting a federal law regarding the religious rights of prison inmates. He said the Establishment Clause only “prohibits Congress from enacting legislation ‘respecting an establishment of religion'; it does not prohibit Congress from enacting legislation “respecting religion” or “taking cognizance of religion.” (Emphasis in original). On its surface, it may sound logical but Thomas goes on to reveal how he views the true impact of this type of analysis:

Congress need not observe strict separation between church and state, or steer clear of the subject of religion. It need only refrain from making laws “respecting an establishment of religion”; it must not interfere with a state establishment of religion. For example, Congress presumably could not require a State to establish a religion any more than it could preclude a State from establishing a religion.”

(Emphasis added).

While no other justice joined in this opinion, seven states filed an amicus (“friend of the court”) brief (PDF file) joining Ohio in advocating the position Thomas announced in the pledge case. Thus, there are apparently state governments out that believe they should have the right to establish a religion if they so desire.

A state-based American Taliban may sound farfetched. But if these views of the Establishment Clause ever find support with the rest of the Supreme Court, the legal groundwork will exist.

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About Tim Gebhart

Tim Gebhart is a book addict living in Sioux Falls, S.D., where he practices law to provide shelter for his family, books and dogs.
  • http://www.roblogpolitics.blogspot.com RJ

    It’s a hard-core States’ Rights argument he’s making. But it’s not a theocratic one.

  • http://georgepwood.com George P. Wood

    Actually, Thomas’s argument is historically correct. At the Founding, “establishment” had a very specific meaning, namely, the state support of a church through government-collected tithes, preferential treatment, religious tests, etc. The First Amendment, which was understood to apply only to the Federal Congress at the time, left those state-established religions in place. No state church was ever disestablished through federal court challenge. They all disestablished voluntarily, at the behest of their state legislators. The last to do so did so in the 1820s, I believe. By the same token, because the Founders understood establishment as an institutional arrangement, they felt quite free to arrange for chaplains in both houses of Congress and for the military, to call for national days of prayer and fasting, etc. Why? Because they considered all these things to be ecumenical, not establishing one religion at the expense of another. They may have been wrong, of course, but that was the state of affairs at the Founding. Modern jurisprudence understands “establishment” quite differently, as making any reference to God in a public document or forum, regardless of whether that results in some sort of institutionalized church. And, through the incorporation doctrine, the courts have applied the First Amendment to the church, a practice unknown at the Founding. Check out Akhil Amar Reed’s, The Bill of Rights. He is a professor at Yale Law School, and not a political conservative. He articulates the original understanding of the First Amendment correctly, but he also argues in favor of the modern interpretation.

  • http://georgepwood.com George P. Wood

    Actually, Thomas’s argument is historically correct. At the Founding, “establishment” had a very specific meaning, namely, the state support of a church through government-collected tithes, preferential treatment, religious tests, etc. The First Amendment, which was understood to apply only to the Federal Congress at the time, left those state-established religions in place. No state church was ever disestablished through federal court challenge. They all disestablished voluntarily, at the behest of their state legislators. The last to do so did so in the 1820s, I believe. By the same token, because the Founders understood establishment as an institutional arrangement, they felt quite free to arrange for chaplains in both houses of Congress and for the military, to call for national days of prayer and fasting, etc. Why? Because they considered all these things to be ecumenical, not establishing one religion at the expense of another. They may have been wrong, of course, but that was the state of affairs at the Founding. Modern jurisprudence understands “establishment” quite differently, as making any reference to God in a public document or forum, regardless of whether that results in some sort of institutionalized church. And, through the incorporation doctrine, the courts have applied the First Amendment to the church, a practice unknown at the Founding. Check out Akhil Amar Reed’s, The Bill of Rights. He is a professor at Yale Law School, and not a political conservative. He articulates the original understanding of the First Amendment correctly, but he also argues in favor of the modern interpretation.

  • http://georgepwood.com George P. Wood

    Or rather, through the incorporation doctrine, the courts have applied the First Amendment to the states, a practice unknown at the Founding. (I wrote “church” instead of “states” in my comment above. You are free to determine whether that was a Freudian slip.)

  • http://gonzo-marx.blogspot.com gonzo marx

    my humble Opinion, it sounds a lot like the Resoning used to defend slavery by the South…i could be mistaken here, not being a Lawyer..

    as to the whole “establishment” bit..i do understand the historical Points George is making…but new Factors have definately entered into the mix since then

    at the time of the Founders you have various christian sects, and jews…that’s about it as far as they thought or dealt with

    how many other Faiths are in this nation now?

    Buddhists come to mind for one, plenty of others tho

    to them, the “establishment” of any “state” religion could easily be argued as an infringement on their Rights…hence the need for seperation of Church and State as has been defined by the Court…

    sometimes Thomas can see the Obvious, other times he makes some weird turns of Thought…

    i guess that’s why there are 9 of them, eh?

    Excelsior!

  • http://www.insightbb.com Christopher Knoepfle

    Clarence Thomas in Hamdi vs Rumsfeld

    Question left open:
    If I wipe my ass on the bill of rights in order to demonstrate via circumspection that toilet paper is not a constitutional guarantee for a man about to take it up the ass from the Man and indefinitely and with no protections, rights, or remedies, what is in fact my first principle of jurisprudence?

    Answer:
    No one has a clue — indeed, I shit on the whole bill of rights when I write a dissent like the one I wrote in Hamdi vs Rumsfeld. The best part…the turd will live on long after I’m gone for future turd lovers and those who keep trying to compare my turd fetish with jurisprudence and the work of my peers and predecessors.

  • http://www.14thamendmentsummary.com/ 14th Amendment Summary

    I wonder if we all give enough priority to the Fourteenth Amendment of the Constitution?