Noting the emperor has no clothes: establishment-clause jurisprudence of Justice Thomas

Monday, October 8, 2007

John C. Eastman

This article is part of an online symposium on the First Amendment Center Online concerning Supreme Court Justice Clarence Thomas’s First Amendment jurisprudence.

April 26, 1995, was one of those rare moments in recent Supreme Court oral argument history. Contrary to his customary and oft-noted silence on the bench, Justice Clarence Thomas asked a question—indeed, a series of questions—in the case of Capitol Square Review & Advisory Board v. Pinette (1995).

Although the case was destined to become a landmark in the Court’s establishment-clause jurisprudence, Justice Thomas’ questions took an entirely different tack, noting that the “cross” displayed on public property that had given so much “separation of church and state” consternation to the lower courts and to his colleagues was actually the flaming symbol of the Ku Klux Klan, not a religious symbol at all. He pursued this line of questioning in his own short concurring opinion, noting the obvious point “that the Klan had a primarily nonreligious purpose in erecting the cross.” “The Klan simply has appropriated one of the most sacred of religious symbols as a symbol of hate,” he continued. For Justice Thomas, this suggested “that [the] case may not have truly involved the Establishment Clause” at all.

For the lower courts, and ultimately the Supreme Court, to have treated a Ku Klux Klan case as a religious establishment-clause case had a certain bizarre tinge to it, and Justice Thomas, like the young lad in Hans Christian Andersen’s fairy tale, was not willing to let the fact go unremarked.

‘Rethinking the Establishment Clause’
Indeed, much of Justice Thomas’ establishment-clause jurisprudence follows the same emperor-has-no-clothes pattern. In his opinion concurring in the judgment in Elk Grove Unified School District v. Newdow (2004) — the infamous Pledge of Allegiance case — Justice Thomas refused to play along either with the majority’s opinion pretending that Michael Newdow did not have standing under existing Supreme Court precedent to challenge the recitation of the Pledge of Allegiance (and its oh-so-awful phrase, “one Nation under God”), or with the concurring opinions of Chief Justice William Rehnquist and Justice Sandra Day O’Connor pretending that existing precedent in such cases as Lee v. Weisman (1992), County of Allegheny v. ACLU (1989), and Lynch v. Donnelly (1984) were somehow distinguishable because the phrase, “under God,” really has no religious meaning. “Telling either nonbelievers or believers that the words ‘under God’ have no meaning,” Justice Thomas would later remark in Van Orden v. Perry (2005), “contradicts what they know to be true.” Instead, Thomas pointed out the obvious — that the 9th U.S. Circuit Court of Appeals opinion by Senior Circuit Judge Alfred Goodwin, joined by Circuit Judge Stephen Reinhardt, was a faithful and coherent application of the Supreme Court’s existing, albeit completely erroneous, precedent. Rather than ducking the problem, as the majority did, or artificially distinguishing it away, as the concurrences did, Justice Thomas took the “opportunity to begin the process of rethinking the Establishment Clause,” which is in “hopeless disarray” — as every law student with an ounce of logic under his or her belt knows.

Perhaps most profoundly, though, Justice Thomas has confronted the real elephant in the establishment-clause room, namely, whether the clause properly applies to the states at all. 2007 marks the 60th anniversary of Everson v. Board of Education of Ewing (1947), yet in all that time, precious little note has been taken of how little analysis is found in that opinion to support the Court’s decision to incorporate the establishment clause and make it applicable to the states via the 14th Amendment.

Three times in the past five years, Justice Thomas has in concurring opinions challenged Everson’s minimally reasoned holding: in the 2002 school vouchers case of Zelman v. Simmons-Harris; in the 2005 Ten Commandments case of Van Orden v. Perry; and in the 2004 Newdow case as well. Indeed, in Newdow, Justice Thomas decided to confront Everson head on, finding that existing precedent based on it, if faithfully applied, would in fact render the Pledge of Allegiance unconstitutional if the erroneous precedent was not overruled.

Federalism focus
The short version of Justice Thomas’ argument, first suggested in Zelman and then more fully developed in Newdow and Van Orden, is this: The establishment clause is a federalism provision, barring the establishment of a national church and preventing the federal government from otherwise interfering with state government decisions about whether, and how much, to support religious organizations.

The establishment clause, like the rest of the Bill of Rights, did not apply to the states at all. In fact, the clause forbade the federal government from interfering with existing state established churches. The initial language proposed by James Madison during the first Congress would merely have prohibited the federal government from establishing a national religion. After several members of Congress expressed concern that the proposed language did not do enough to protect existing state-established religions, the language was changed to prohibit the federal government from making any law “respecting” an establishment of religion, thus accomplishing the twin purposes of prohibiting the establishment of a national religion and of preventing federal interference with the existing state churches.

Given this federalism aspect of the establishment clause, the application of the clause to the states via the protection of “liberty” in the due-process clause of the 14th Amendment is particularly troubling, for as Justice Thomas noted in Newdow (and as Justice Potter Stewart had previously noted in his 1963 dissenting opinion in School District of Abington Township v. Schempp), incorporation of the establishment clause authorizes the federal government, via the federal courts, to do the very thing the clause originally prohibited it from doing.

Even more troubling to Justice Thomas than the incoherence of the incorporated establishment clause was the “handcuff[s]” that the doctrine placed on the states in dealing with matters of religion and education, preventing the States from experimenting with education in order to best meet the needs of the rising generation. Our nation’s founding fathers would likewise have been troubled by the barriers to the states’ exercise of the police power — the power to regulate the health, safety, welfare and morals of the people — erected by the current expansive reading of the establishment clause. The Founders viewed a virtuous citizenry as a necessary prerequisite for republican government, and for them it was axiomatic that national morality could not prevail without religious principle and instruction.

The role of religion
George Washington, for example, noted in his Farewell Address that “Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports.” Because Washington rightly recognized that “reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle,” these supports had to be found somewhere, and in the federal system he and his fellow Founders designed, that support was to come from the states, where the bulk of government powers, including the important police power, was left. And lest there be any mistake that this was in fact the Founders’ view of the subject, the Northwest Ordinance, adopted in 1787 while the Constitution was being written, and re-adopted by the very first Congress almost simultaneously with that Congress’ consideration of the First Amendment, likewise recognized the importance of religion to good government, and the necessity of its support by government through education in schools: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

Supreme Court Justice William O. Douglas similarly acknowledged the Founders’ views when, in the 1952 case of Zorach v. Clauson, he wrote: “We are a religious people, whose institutions presuppose a Supreme Being.” The very legitimacy of government by consent is based on the self-evident truth, articulated in the Declaration of Independence (by Thomas Jefferson, no less), that all men, all human beings, are equally created by God. And the very idea that human beings have any rights is based on the claim in the Declaration of Independence that human beings are endowed by their Creator with certain inalienable rights, including the rights to life, liberty, and the pursuit of happiness.

This understanding of God as the source of the rights of mankind is more than of merely historical interest. Every one of the original states and nearly every one of the current 50 acknowledges God in its constitution. The preamble to California’s constitution is typical: “We, the people of California, grateful to Almighty God for our freedom, in order to secure and perpetuate its blessings, do establish this Constitution.” The Massachusetts Constitution of 1780, still in effect, provides for “public instructions in piety, religion and morality” because “the happiness of a people, and the good order and preservation of civil government, essentially depend upon … the public Worship of God.”

Indeed, contrary to the Court’s decision in Lee v. Weisman, many of the state constitutions recognize that the public worship of God is a duty of mankind, even while they expressly protect against formal sectarian establishments and provide for the free exercise of religion. Thus, a government restriction on the teaching or support of religion would have been viewed by the Founders as both an infringement on the free exercise of religion and as a dangerous undermining of the best means of fostering the virtue necessary to the republic.

The contrary view, first espoused by the Court in Everson with little reasoning and even less citation of relevant precedent, really is the emperor with no clothes. Now that Justice Thomas has stated the fact publicly, it will become increasingly difficult, indeed embarrassing, for the rest of the Court to ignore the obvious.

John Eastman is the dean and Donald P. Kennedy Chair in Law at Chapman University School of Law in Orange, Calif. He clerked for Justice Thomas during the Supreme Court’s October 1996 term.

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