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.