Clarence Thomas and state theocracy

Sliding under my radar several days ago was the latest venture by Supreme Court Justice Clarence Thomas into support for theocracy in the United States.

Roughly a year ago, I blogged about how his concurrence in the so-called pledge case indicated his Establisment Clause (“Congress shall make no law respecting an establishment of religion”) jurisprudence was such that he would allow states to establish religions. He reiterated that position in a recent case and, frighteningly, it appears he’s finding support among the states.

His latest statement came in a concurring opinion May 31 in a case interpreting a federal law regarding the religious rights of prison inmates. Now, he says 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).

Unfortunately, seven states filed an amicus (“friend of the court”) brief (PDF file) to join Ohio in urging the position Thomas announced in the pledge case. A state establishing its own American Taliban may seem farfetched but if these views of the Establishment Clause ever find support with the rest of the Supreme Court, the potential exists.

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 right.

Clarence Thomas, concurring opinion in Elk Grove Unified School District v. Newdow

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