Supreme Court Justice Argues That States Should Be Permitted To Set Up Official Religions

May 6, 2014 by Sarah Jones in Wall of Separation

You may have heard: Town of Greece v. Galloway didn’t go our way. In a 5-4 split, the U.S. Supreme Court found that local governments do have the right to open public meetings with sectarian prayers, albeit with certain restrictions. Justice Anthony Kennedy, writing for the majority, noted that towns can’t exclude non-Christian clergy from delivering prayers, and that prayers can’t proselytize or denigrate non-believers.

But in a concurring opinion, Justice Clarence Thomas took things a bit further, writing that the First Amendment “probably prohibits Congress from establishing a national religion.” That word – probably –is weighted here and indicates a general suspicion toward the way the First Amendment is currently interpreted. It also introduces a sweeping defense of the establishment of religion at the state level.

“At least six States had established churches in 1789,” he wrote, and later added, “The import of this history is that the relationship between church and state in the fledgling Republic was far from settled at the time of ratification.” ... “That lack of consensus suggests that the First Amendment was simply agnostic on the subject of state establishments; the decision to establish or disestablish religion was reserved to the States,” he wrote. ... He also pointed to our founding documents and their references to a deity as further evidence that the Constitution’s framers didn’t intend to prevent the total disestablishment of religion.

To call that argument a creative interpretation of the First Amendment would be a charitable understatement. It’s a line of thinking to be expected from debunked pseudo-historians like David Barton, not a Supreme Court justice.

By Alexandra Petri May 6 at 2:29 pm

If centuries of attempting to interpret the Constitution and the Founders’ Intent have taught us anything, it is that there is a great deal of disagreement about what the Founders actually meant at any given time. No one seems quite sure, except for Antonin Scalia, on whose shoulder the ghost of Thomas Jefferson perches and into whose ear John Adams’s restive spirit frequently whispers sweet nothings.

This is especially true when it comes to the establishment clause, which the Supreme Court cited Monday in the case of Town of Greece v. Galloway, about whether it is acceptable to begin the meeting of legislative bodies with prayer. Their answer, by a 5 to 4 margin: Sure, probably?

The majority opinion pointed out that the town made a good-faith effort to bring in prayer leaders from a variety of religious backgrounds and that there is a long tradition of legislative prayer — even sectarian legislative prayer — not being deemed coercive or unconstitutional.

But Clarence Thomas, in his concurring opinion, went even further on the subject of the establishment of religion. That whole clause is just a federalism thing, he argued. States might well be able to establish religion, if they really wanted to.