Courting Disaster
Sonja DeWitt March/April 2019Americans are inclined to take for granted their country’s reputation as a beacon of religious freedom for all people. After all, the modern concept of religious freedom arguably originated in America and has spread outward to the rest of the developed world. Our religious freedom has given our country an enviable wealth of religious and philosophical diversity. Decades of settled legal precedent and popular consensus that has given equal protection to all religious beliefs have allowed numerous diverse religious groups to coexist peacefully and flourish. Because of these advantages, Americans can be forgiven some complacency about the security of their religious rights.
Sadly, though, complacency at this crucial time could be a fatal mistake. The myth of American religious tolerance masks a dark history of bigotry and persecution, spearheaded and facilitated by established state churches. The fight for genuine freedom and equality for all religious beliefs in this country has been a long and bitter one. And it is not over. In fact, over the past few months, the fight for our religious freedom and equal rights has entered what is possibly the most intense and dangerous phase in American history.
During the past few decades a religious movement has gained widespread political power with a clearly stated agenda—to dismantle the establishment clause, which arguably requires separation of church and state. This foundational constitutional protection, which has guaranteed the right to equal treatment of all Americans regardless of religious belief has never been in greater danger.
Since the confirmation of Justice Brett Kavanaugh, for the first time in history proponents of this movement have a majority weight on the Supreme Court. Acquiring this majority could remove a last restraint on the movement’s legal agenda.
The most open and vocal proponent of this anti-establishment clause agenda on the Supreme Court has been, since the death of Antonin Scalia, Justice Clarence Thomas. Thomas is unapologetic about his views. He joined Scalia in dissenting opinions that explicitly rejected the well-established legal doctrine that the government must be neutral, not favoring one religious position over another.
Justice Thomas believes that it is not a violation of the Constitution for government to favor “religion over irreligion” and “monotheistic religions” over others, at least for the purposes of invoking God by prayer on public occasions. He believes the (monotheistic) public’s interest in having the government offer prayers to God trumps the rights of nonmonotheists not to be “excluded.”
This rejection of the principle of governmental neutrality toward all religions blatantly violates nearly 200 years of American political philosophy and decades of clear legal precedent.
Interpreting the establishment clause is a complex and frustrating undertaking, because legal philosophy and actual practice so frequently conflict, and precise boundaries are so difficult to draw. Actual government practice has often seemed inconsistent with official neutrality when, for example, a government body opens with prayer or appoints an official chaplain.
However, even when actual practice has been confused or inconsistent, the legal doctrine of government neutrality has served as a wall of protection for Americans’ broad religious rights and robust religious diversity. It is an ideal that Americans believe in and fight for, even if it is not fully realized. Thus, for a Supreme Court justice to explicitly reject the legal doctrine of neutrality is a grim portent for the future of the country.
If Thomas’ stated position were to become the law, it would again place all nontheistic and polytheistic religions—Buddhists, Hindus, atheists, agnostics, and others—at an official legal disadvantage. It would, in essence, make them second-class citizens in American national life, and they would have no legal recourse to protest this “exclusion.” Unfortunately the opinions of the other conservatives on the Court tend to make it clear that they support this general legal approach, even if their language is more guarded and conventional.
Moreover, Thomas’ use of the expression “monotheistic religions” is merely a transparent code phrase for Christianity and (possibly) Judaism. It would not take a constitutional scholar to predict the new majority’s position if a government body were to mandate prayers facing Mecca five times a day.
Thomas’ Views on State Establishment
But Thomas’ extreme views go well beyond nonneutrality. He has explicitly stated that in his view the Constitution does not prohibit a state government from establishing an official state religion. He bases this on a very technical and historically flawed view of the establishment clause.
Thomas believes that in creating the establishment clause, the Framers of the Constitution did not intend to create a right for individuals to be free of an oppressive national church, but that the establishment clause was intended merely to remove from the federal government the power to regulate religion and reserve that power to the states. Therefore, he believes the establishment clause gives state governments official constitutional license to establish their own state churches.
Thomas claims that the fact that several states had official established churches at the time of the Constitution shows that the Framers were not opposed to religious establishment by states.
It is true that when the Bill of Rights was adopted, it was understood by most only to restrict action by the federal government, not by the states. However, it should be noted that James Madison, the “Father of the Constitution” and primary drafter of the Bill of Rights, foreseeing that the states could also violate individual rights, made a valiant but unsuccessful attempt to include language applying the First Amendment to the states.
It is also true that at the time of the Constitution several states still had established churches. But considered in its historical context, it is clear that the Constitutional Convention was not in a position to abolish state religious establishment, whatever the members’ beliefs on the subject. The majority of the Framers and the people they represented, having recently fought a bloody war against an oppressive centralized government, were understandably wary of a strong central power.
A draft Constitution that overturned existing state laws would never have been ratified by states fiercely protective of their new and costly independence. Moreover, states with established religions were anxious to ensure that the federal government would not meddle with their entrenched legal framework. Because of their experience with Great Britain, it was natural for them to assume that the states, being easier for the people to control, would be best able to protect the people’s rights.
The first words of the Constitution—“We the People”—have a revolutionary significance obscured in modern times because the language is so familiar and the historical context is forgotten. The Constitution was an unprecedented statement of rights for people—probably the first such statement by a government in world history. The Founders saw states’ rights as an avenue for securing individual rights, but the ultimate beneficiaries of all constitutional rights—including states’ rights—were always the people. Even the Tenth Amendment, which explicitly reserves rights to the states, ends with the words “to the people.”
In the minds of the Founders, power always flowed upward—from the people to the states to the federal government—and was weakened and diluted with every step upward. This represented a radical departure from the traditional top-down view—“the divine right of kings”—which had dominated political theory since prehistory.
“Governments are instituted among men, deriving their just powers from the consent of the governed,” the Declaration of Independence boldly proclaimed. Thus, all rights were reserved to the people, and the power to restrict those rights was granted, in strictly limited and quantified ways, to the states and the federal government.
As one legal commentator noted, the provision that removed federal power to regulate religion was paired to a corresponding “immunity” or right of the people to be free of such regulation.
The Constitution set strict limits on the powers of the federal government and reserved many rights to the states. But the silence of the Constitution on state establishment is not proof that the Founders in general supported it, any more than compromises about slavery demonstrate universal agreement that the institution was moral or just.
The Establishment Clause as an Individual Right
The claim that the Founders did not intend establishment as an individual right fails under scrutiny. Even if there were no historical record of the positions of the Framers, the mere syntax of the First Amendment signals that the free exercise clause and the establishment clause are intimately and inextricably linked together in support of the same fundamental right. The two clauses are part of a single sentence. Indeed, the establishment clause comes first, which could suggest that establishment was a more urgent concern to the Founders than free exercise.
The language chosen for the final version of the amendment was not casual or accidental. It went through several drafts and was hotly debated, demonstrating that the Framers were acutely conscious of the precise meaning of language and grammar they adopted. One would expect that Thomas, as a legal scholar whose philosophy requires deference to the original meaning of the text of the Constitution, would seriously weigh the linguistic evidence that the two clauses are linked.
The first eight amendments of the Bill of Rights include a comprehensive cluster of provisions—all clearly intended to protect individual rights and liberties. There is no question that the Framers of the Constitution were intelligent and rational men who fully understood the gravity of their task in forming a new nation. They labored painstakingly to create clear, precise, and comprehensible statements of rights, which they expected would guide future generations.
Given this, it is inexplicable that the Founders would randomly and illogically insert a provision whose only intent was to preserve states’ rights into an amendment explicitly devoted to individual rights and freedoms.
There are other provisions of the Constitution deliberately intended to define the relationship of the federal government and the states and delineate the rights reserved to the states. If the establishment clause was intended merely as a reservation of rights to the states, why was it not included in one of those provisions? Instead, it was embedded in the First Amendment, as the first of a string of clear statements of individual rights.
There is ample historical evidence that many of the prominent Framers opposed the establishment of a government religion, and explicitly linked religious establishment to threats against individual liberties. The Founders were acutely aware of the lessons from their own recent history—that the right to free exercise was inseparable from the right to be free of government regulation and establishment of religion.
“An Act for Exempting the Different Societies of Dissenters From Contributing to the Support and Maintenance of the Church” declares: “It is contrary to the principles of reason and justice that any should be compelled to contribute to the maintenance of a church with which their consciences will not permit them to join, and from which they can derive no benefit: for remedy whereof, and that equal liberty, as well religious as civil, may be universally extended to all the good people of this commonwealth.”
James Madison, the primary drafter of the Constitution, later wrote, “There remains [in some parts of the country] a strong bias towards the old error, that without some sort of alliance or coalition between government and religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both parties, that the danger cannot be too carefully guarded against.”
And from John Adams, who lived in a state with an official established religion, “Every species of these Christians would persecute Deists, as soon as either sect would persecute another, if it had unchecked and unbalanced power. Nay, the Deists would persecute Christians, and Atheists would persecute Deists, with as unrelenting cruelty, as any Christians would persecute them or one another.”
These statements, and other similar statements from such men as George Washington, Benjamin Franklin, Alexander Hamilton, Thomas Jefferson, and others demonstrate that the Founders clearly understood that freedom from religious establishment was necessary to protect fundamental individual rights guaranteed by the Constitution. One would expect Justice Thomas to understand, as a conservative committed to limited government, that the “free” in free exercise inevitably crumbles under the heavy hand of government regulation.
If Thomas’ view were correct—if the majority of those who ratified the Constitution and the Bill of Rights saw it as sanctioning states’ regulation of religion, one would expect to see the states taking advantage of this grant of power by creating or extending their religious regulation.
But in fact, the opposite happened. After the Constitution was adopted, no new official state establishments of religion were formed. And those establishments that predated the Constitution rapidly declined both in public support and practical effect.
Incorporation
The second part of Thomas’ argument relates to the intent of the framers of the Fourteenth Amendment, adopted in response to endemic violations of the rights of former slaves in the Southern states after the Civil War. He claims that Congress did not intend that the establishment clause be “incorporated” into the Fourteenth Amendment, and thus become binding on the states.
The Civil War marked a seismic shift in the constitutional relationship of states to the federal government. The decades-long conflict over slavery had conclusively demonstrated that states were not more reliable guardians of individual rights than the federal government, as the Founders had assumed. The Fourteenth Amendment was passed with the express purpose of ensuring that citizens of states were granted all the fundamental rights guaranteed by the Constitution.
Unfortunately, the intended purpose of the Fourteenth Amendment, to protect the rights of individuals, was subverted for many decades—its protections used primarily to serve economic interests. But finally, in the early twentieth century, many of the fundamental rights in the Bill of Rights, including the establishment clause, were determined to be incorporated into the Fourteenth Amendment. This fulfilled, at least partially, the original intent of its framers.
Thomas’ argument that the framers of the Fourteenth Amendment did not intend to incorporate the establishment clause is dubious at best, and is contradicted by clear statements of those who framed the amendment. A review of the legislative history of the amendment shows significant evidence that the framers of the amendment intended it to incorporate all of the protections of rights guaranteed in the first eight amendments to the Constitution.
The primary drafter of the Fourteenth Amendment, Senator John Bingham, stated his unequivocal intent that the Fourteenth Amendment applied all the rights in the first eight amendments. In congressional testimony, after quoting all eight amendments verbatim, he stated, “These eight articles I have shown never were limitations upon the power of the states, until made so by the Fourteenth Amendment. The words of that amendment, ‘no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ are an express prohibition upon every state of the union, which may be enforced under existing laws of Congress, and such other laws for their better enforcement as Congress may make.”
Congressman Jacob Howard, who was instrumental in passing the amendment in the House, made similar statements.
There is no legal or logical reason to suppose that these men, whose intent was to protect all fundamental rights in the Bill of Rights, would arbitrarily have excluded only one provision—the right to be free of religious establishment.
Even if we accept Thomas’ unsupported presupposition that the establishment clause was not originally intended to create an individual right, under an originalist analysis, we would still have to demonstrate that the framers of the Fourteenth Amendment had the same belief. This assumption ignores substantial historical evidence.
Leaving aside the original intent of the drafters of the establishment clause, by the late 1850s the public understanding had fundamentally shifted. By that time the prevailing view was that the establishment clause created an individual right to be free of government regulation of religion.
A case decided in 1858 by the California Supreme Court clearly expressed this fundamental shift in legal philosophy: “When our liberties were acquired, our republican form of government adopted, and our Constitution framed, we deemed that we had attained not only toleration, but religious liberty in its largest sense—a complete separation between church and state, and a perfect equality without distinction between all religious sects.”
In the 1860s many states incorporated the concept of nonestablishment into their own state constitutions. At this point Americans understood the establishment clause to mean that “no government could legitimately prefer . . . one religion over another or attempt to suppress . . . religious exercise on religious grounds. . . . Establishment had come to represent a personal freedom.”
Justice Thomas also assumes, without supporting evidence, that the numerous uses of such expressions as “freedom of religion,” by the Fourteenth Amendment Congress, referred solely to the free exercise clause, and not also to the establishment clause.
However, one legal commentator who has extensively researched the 1860s views on religious rights noted that “to the nineteenth-century mind, suppression of religious opinion was the quintessential example of a government-imposed religious establishment. Similarly, in 1871, [John] Bingham first lists the entire First Amendment—including the establishment clause—as examples of the privileges or immunities protected under Section One of the Fourteenth Amendment. Only later does he refer to Southern restriction of ‘the rights of conscience.’ ”
He further noted that in their discussions of the amendment, Congress made little attempt to distinguish between the right to free exercise and the right to nonestablishment, since they were considered part of the same right.
Justice Thomas’ strained attempt to circumvent the evidence of congressional intent in framing the Fourteenth Amendment is ironic, since Thomas is well known as a committed originalist. Originalism is a complex and slippery term that has numerous individual interpretations. In essence, though, it refers to a legal philosophy that attempts to find the meaning of a legal provision in the original intent of those who drafted it.
Looking at Thomas’ religion opinions as a whole, the conclusion is inescapable that his ultimate intent is to broaden religious practice rights significantly, but only for majority (Christian) religious beliefs. Under both his nonneutrality and his disincorporation theories, the ultimate result would be limited rights and exclusion for minority religious positions.
It is impossible to believe that Thomas is so out of touch—so insulated from reality in a legal ivory tower—that he is completely oblivious to the real-world consequences of the adoption of his legal doctrine. He cannot be unaware that the historical record, to which he professes such complete fealty, demonstrates conclusively that state establishment of religion goes hand in hand with religious discrimination and persecution.
The Implications of Disincorporation
Regardless of Thomas’ understanding or intent, there is no question that applying his legal doctrine would be catastrophic for freedom in America.
As one astute legal scholar has pointed out: “If the establishment clause were disincorporated, states would be constitutionally empowered to delegate government power to religious organizations; make theological judgments when parties consent to the state’s jurisdiction; levy taxes dedicated to the support of a particular religion or religion generally; grant financial or in-kind assistance to prayer, worship, and other unambiguously religious activities; endorse or condemn particular religions; underwrite prayer, religious education, and other religious services in public schools; appropriate religious symbols and practices for its own purposes even when they signify theological meaning or endorse a particular religion” (citations omitted).
And this is not even a comprehensive list. State governments would be empowered to meddle with every aspect of life that touches religious faith and practice. It is hard to overstate the devastating effect this could have on all the individual rights of citizens of such states, including inhibiting free speech, free assembly, privacy, even property rights.
A Credible Threat?
The question arises: “Is the terrifying specter of Court-sanctioned state establishment a credible threat?” After all, Thomas is only one justice out of nine. To answer that question authoritatively would require a constitutional scholar with a concentration in fortunetelling. However, it is safe to conclude that the threat has become exponentially more credible with the reality that Thomas has become one of a majority of five with apparently similar views.
Whether Justice Thomas can bring the other four into the fold of disincorporation remains to be seen. As yet, there is no specific evidence on the other four justices’ views on this issue.
However, it has been noted that Justice Neil Gorsuch has been, in essence, Thomas’ ideological twin—voting with Thomas on almost every case they have decided. Gorsuch’s conservative judicial philosophy had also been compared to Scalia’s. So it is possible he would be open to Thomas’ anti-incorporation arguments.
Justice Samuel Alito has gained the reputation of voting for conservative ideology consistently, even when this contradicts his judicial philosophy. Therefore, it would not be surprising if he also could be persuaded to follow Thomas’ lead.
One legal analysis of the religion decisions of Brett Kavanaugh describes a judge who could be characterized as a “kinder, gentler Scalia”—one who gives due legal weight to the “pain” of an “excluded” religious minority before he rules that that pain is not sufficient to outweigh the majority interest in government religious expression. In other words, more empathy, same result.
Chief Justice John Roberts appears to be less committed to a radical conservative agenda than the other four, but he is no less willing to favor religious groups, and weaken the “separation” of the establishment clause, as demonstrated by his recent decisions.
A careful look at the expressed positions of all the conservative members of the Court forces the conclusion that they have the same basic objectives—to increase the rights of a select group of Christians to control the religious discourse in this country, and to promote the rights of that group to religious practice at the expense of all others. So in the end it may not matter whether they get there by the path of Scalia’s nonneutrality or Thomas’ more radical disincorporation. Nonneutrality may be a more circuitous path, and may take somewhat longer, but the destination is the same.
History gives us indisputable evidence that this philosophy, carried to its inevitable end result, would return this country to the seventeenth-century world of religious discrimination, exclusion, and persecution of religious minorities. From the Inquisition, to the massacre of French Huguenots, to Puritan New England, history also demonstrates that state establishment inevitably destroys the right to free exercise for all people, even for members of the majority.
It would be wise for Americans at this critical time to heed the warning of the philosopher George Santayana, “Those who cannot remember the past are condemned to repeat it. Studying history is necessary to avoid repeating past mistakes.” Is this the kind of history we want to repeat?
Article Author: Sonja DeWitt
Sonja DeWitt is a lawyer with over twenty years of experience handling cases of discrimination, including religious discrimination cases. She has been involved in political advocacy regarding religious liberty issues for several years, including meeting with the staffs of members of Congress, organizing an interfaith lobbying effort, and writing legal briefs. She received the A.T. Jones Award from the North American Religious Liberty Association for her work with religious liberty, and has been published in Liberty Magazine. She currently handles cases for federal agencies and blogs about faith, politics and social justice at voicesfromthewilderness.net.