This week’s Supreme Court decision on prayer before municipal meetings wasn’t really that surprising. Particularly given the make-up of the Court, it’s a fairly narrow decision that is based in large part on its particular facts. Yet while it got plenty of attention, one thing that went largely unmentioned is something I blogged about in 2005 and 2004 — Justice Clarence Thomas’ belief that the Bill of Rights allows states to establish their own religions.
In a concurring opinion in the case, Thomas reiterated and cited his prior opinions on this point. He agrees the First Amendment’s guarantee of the freedom to exercise religion protects an individual’s right to practice religion. Yet he clearly believes the prohibition against government establishing religion does not protect individual rights; it’s intended to protect the states. Therefore, holding the Establishment Clause applies to state and local governments “eliminates their right to establish a religion free from federal interference, thereby ‘prohibit[ing] exactly what the Establishment Clause protected.'” (Emphasis added.) In fact, it seems he only grudgingly admits the Establishment Clause has any meaning, saying it “probably” prohibits Congress from establishing a national religion.
Fortunately, so far no other member of the Court seems to agree with these views. In fact, while the other true originalist on the Court, Justice Scalia, joined in Thomas’ opinion, it was not on this point. Still, the upshot of Thomas’ position is more than a bit frightening. We’ve seen the impact of sectarianism in other parts of the world. Now imagine each of the 50 states deciding what is the “true” religion.
The Court’s inattention to these doctrinal questions might be explained, although not excused, by the rise of popular conceptions about “separation of church and state” as an “American” constitutional right.
Justice Clarence Thomas, concurring opinion, Town of Greece v. Galloway