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.”
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.