In yesterday’s Supreme Court ruling on official government prayers at town-council meetings, Justice Anthony Kennedy wrote the 5-4 decision arguing that such practices are permissible under the First Amendment. There was a separate concurring opinion from Justices Samuel Alito and Antonin Scalia, but then Justice Clarence Thomas decided to go further than any of his colleagues.
As Dahlia Lithwick noted, Thomas made the case “that in his view the First Amendment religion clauses don’t apply to the states in the first place.”
Wait, really? Yep, that’s what Thomas actually believes.
…Thomas couldn’t get Scalia’s signature for another part of his dissenting opinion, in which Thomas – not for the first time – disputes the notion that the 1st Amendment’s ban on the “establishment” of religion even applies to state and local governments.
Here’s the deal: the first 16 words of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Nearly a century ago, under something called the incorporation doctrine, courts ruled that most of the Bill of Rights applies to state and local government, too.
In other words, under the literal text of the Constitution, Congress can’t pass laws interfering in religion, abridging the freedom of speech, or undermining a free press, but once the Bill of Rights was applied more broadly, neither can states or municipalities.
Thomas, however, wants to turn back the clock. If policymakers in your state chose today to establish Christianity as the official state religion, Clarence Thomas believes that would be entirely permissible under the First Amendment. So long as Congress didn’t pass the law, he says, it’s kosher.
Even Scalia, hardly a moderate, seems to think that’s nutty, but Thomas just doesn’t care.
As Michael McGough’s report added, “Thomas has argued, the Establishment Clause ‘is best understood as a federalism provision – it protects state establishments from federal interference but does not protect any individual right.’”
This is clearly quite radical, even by contemporary standards, though Thomas isn’t entirely alone on his extremist island – it was just last year when North Carolina Republicans considered legislation that read, “The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.”
That bill ultimately failed, as did Thomas’ effort to find justices who would endorse his perspective, but as conservative politics moves sharply to the right, it’ll be worth watching to see just how many Republican officials end up embracing this argument.