State Churches? Justice Clarence Thomas Hears the Call

By Jess Bravin

While the rest of the Supreme Court argued Monday over the constitutional limits on official prayers at town board meetings, one justice said the question may be beside the point.

In a separate opinion, Justice Clarence Thomas wrote that while the First Amendment “probably prohibits Congress from establishing a national religion,” it wasn’t intended to restrict states from adopting their own official religions. Under this view, not only could state or local officials ordain religious exercises for their meetings, they could use tax dollars to fund an official church. He cites the clause “Congress shall make no law respecting an establishment of religion,” saying that “choice of language…effectively denied Congress any power to regulate state establishments.”

After all, “at least six States had established churches in 1789,” Justice Thomas wrote. Connecticut, Massachusetts and New Hampshire “maintained local-rule establishments whereby the majority in each town could select the minister and religious denomination (usually Congregationalism, or ‘Puritanism’).” Georgia and Maryland “permitted taxation in support of all Christian churches,” while South Carolina limited its subsidy to “all Protestant churches,” he added. And while Delaware, Pennsylvania and Rhode Island “had no history of formal establishments,” they “maintained religious tests for office.”

Such diversity regarding official religions “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.

Justice Thomas concedes that states dismantled their official churches following U.S. independence, with the last, Massachusetts, disestablishing in 1833. While he acknowledges that the 14th Amendment authorized the federal government to prevent states from violating individual rights—including the right to worship as one pleases, regardless of the official state religion—he suggests that the Establishment Clause protects not citizens but each state’s “right to establish a religion free from federal interference.”

Justice Thomas has been developing this argument at least since 2002, when he wrote a concurring opinion upholding a school voucher program. While he doesn’t fully commit himself to the conclusion that Hawaii, New Jersey or South Dakota hold the constitutional power to establish their own official religions today, he says that “the burden of persuasion” otherwise “rests with those who claim that the Clause assumed a different meaning upon adoption of the 14th Amendment.”

Sanford Levinson, a law professor at the University of Texas at Austin, said Justice Thomas’s position claims few adherents in the legal community—Not even Justice Antonin Scalia, who like Justice Thomas argues that the Constitution should be applied according to the original meaning of its text when ratified.

“It’s a bizarre argument to make in 2014, when it really has been accepted by almost everybody that whatever accommodation of religion means, it can’t mean the old-fashioned established church as it existed in the colonies or Great Britain at the time of the Revolution,” Mr. Levinson said. But “if a student were making that point in a seminar in American constitutional history, I would say it’s a gutsy, unconventional interpretation that isn’t stupid.”

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