Thomas’ view on church, state gets Gorsuch support
When the United States was founded, it was legal for states to have their own official, taxpayerfunded churches. As far as Supreme Court Justice Clarence Thomas is concerned, state support of one or all religions is still legal, and now he has some company on the court.
The court did not address that issue in its 54 ruling June 30 that said states that provide public funds to private schools must allow religious schools to share in the funding. But Thomas, part of the majority, added a concurring opinion arguing that the Establishment Clause of the First Amendment, prohibiting any “establishment of religion” by the government, binds only the federal government and not the states.
“Properly understood, the Establishment Clause does not prohibit states from favoring religion,” Thomas wrote.
He has stated the same view in a series of cases dating back to at least 2002. When the court in 2004 rejected a challenge by a Sacramento atheist to the addition of “under God” to the Pledge of Allegiance 50 years earlier, Thomas, writing separately, declared that “the Establishment Clause originally protected states, and by extension their citizens, from the imposition of an established religion by the Federal government.”
But in the latest case, he was joined for the first time by another justice, Neil Gorsuch, an appointee of President Trump. That remains far short of a majority on the ninemember court, but the doubling of support was still noteworthy.
“I don’t think it’s a coherent position intellectually, but the fact that Gorsuch endorsed it gives it some weight,” said Joel Paul, a law professor at UC Hastings in San Francisco who has researched the issue.
Some legal scholars have expressed views closer to those of Thomas and have criticized the court for rulings since 1947 that have barred states from granting any recognition or preference to religious institutions.
“Justice Thomas alone has approached the Establishment Clause with historical accuracy,” Vincent Phillip Muñoz, who teaches law and political science at Notre Dame, wrote in a legal publication in 2006. In the view of the Constitution’s drafters, he said, “states would be free to aid or not to aid religion.”
Thomas Jefferson’s muchheralded “wall of separation” between church and state was actually a policy declaration that “all governmental authority over religious matters was allocated to the states,” Daniel Dreisbach, a professor in the School of Public Affairs at American University in Washington, D.C., said in an academic article in 2002.
Asked about Thomas’ recent opinion, Dreisbach said last week he agrees with the justice but doesn’t expect the court to reverse its decadeslong position.
“I suspect most of the other socalled conservative justices on the court would concede that Thomas is correct as a textual and historical matter but are reluctant to join him because to adopt this position would require undoing over 70 years of precedents,” Dreisbach said, referring to the 1947 ruling. “I think it highly unlikely that this particular jurisdictional argument will become a majority position anytime soon.”
Two more rulings on religious issues Wednesday did not address questions of churchstate separation.
But majorities in both cases supported arguments that regulations and laws designed to benefit employees — insurance coverage for birth control, and antidiscrimination laws on hiring and firing — can interfere with an employer’s freedom of religion.
The text of the First Amendment, which also guarantees freedom of speech and the press, applies only to laws passed by Congress. But relying on the postCivil War Fourteenth Amendment in 1868 that added a guarantee of “due process of law,” the Supreme Court has gradually extended most protections of the Bill of Rights to the states, starting with a freespeech ruling in 1925 and including provisions on police searches, jury trials, freedom of the press and gun ownership, as well as religion.
Thomas’ view, however, is that a broad judicial interpretation of the ban on a government “establishment of religion” can interfere with another First Amendment right, free exercise of religion.
Outlawing any official endorsement or favoritism of religion “communicates a message that religion is dangerous and in need of policing, which in turn has the effect of tilting society in favor of devaluing religion,” he said in his June 30 opinion.
That message, he asserted, can lead to “the repeated denigration of those who continue to adhere to traditional moral standards.” As an example of such “denigration,” he cited the court’s 2015 ruling declaring a constitutional right to samesex marriage. Thomas’ dissent from that ruling said it “threatens the religious liberty our nation has long sought to protect.”
Rory Little, a UC Hastings law professor and former Supreme Court law clerk, said Thomas “makes some sense to me” with his argument that the Constitution’s Establishment Clause was originally intended to prevent the federal government from establishing a national religion and was not aimed at the states.
But he said the logic of Thomas’ argument should apply equally to the First Amendment right to free exercise of religion.
“If you said that (freedom of religion) did not apply to the states, then states could interfere with the free exercise of religion, and Thomas certainly doesn’t believe that,” Little said. Thomas has contended there is no contradiction in his position that states are constitutionally required to respect religious freedom, even if they favor one religion over others.
Paul, Little’s Hastings colleague, said some states maintained their established churches for decades after the nation’s founding — Massachusetts kept its affiliation with the Congregational Church until 1833, providing taxpayer funding to the church and increased rights to its members.
But he said some of the nation’s founders had opposed stateestablished churches, notably future Presidents Jefferson and James Madison. They led a successful campaign in the 1780s to prevent Virginia from creating a taxsupported official church, winning passage of a “Religious Freedom” bill Jefferson sponsored as a legislator.
Richard Katskee, legal director of the advocacy group Americans United for Separation of Church and State, said the Virginia episode was evidence that the purpose of the Establishment Clause was to prevent official recognition of religious institutions by government at any level. But he said the endorsement of Thomas’ view by Gorsuch, who has just begun his service on the court, was still cause for concern.
“Given enough time, even complete outlier ideas on the court sometimes eventually become the law,” Katskee said. “Here, that would be exceedingly dangerous for religious freedom.”