Clarence Thomas’ Establishment Clause Originalism

The Supreme Court’s June 30 decision in Espinoza v. Montana Department of Revenue was a landmark victory for religious liberty and school choice. It was also an exhibition of Justice Clarence Thomas’ unabashedly originalist interpretation of the Establishment Clause. His concurrence in Espinoza joins a long line of cases in which he has defending the original meaning of the provision, including Town of Greece v. Galloway, Lee v. Weisman, Van Orden v. Perry, and Zelman v. Simmons-Harris.

Justice Thomas has been consistently critical of the modern view of the Establishment Clause, which mandates strict separation between religion and government. This notion stems from (among other things) Thomas Jefferson’s faulty and misunderstood description of the Establishment Clause as “a wall of separation between Church & State.” It is widely accepted by law professors and historians that this understanding of the Establishment Clause is contrary to its original meaning.

Justice Thomas rejects the strict separationist viewpoint. He argues that the Establishment Clause “protec[ts] States, and by extension their citizens, from the imposition of an established religion by the FederalGovernment.” In other words, the Establishment Clause is a federalism provision designed to prevent Congress from interfering with state efforts to accommodate religion. That is the true wall of separation – a wall protecting state accommodations of religion from federal interference.

This view of the Establishment Clause has also led Justice Thomas to question whether the Establishment Clause can legitimately be applied to the states through the Fourteenth Amendment. (It was applied to the states in 1947 in Everson v. Board of Education). If the Establishment Clause is a federalism provision aimed at preserving state autonomy, it would seem to be logically impossible to apply it to the states. And even if it could be applied to the states, it “would only protect against an ‘establishment’ of religion as understood at the founding,” which concerned governmental coercion of religious belief.

Justice Thomas explains how the strict separationist viewpoint has led to a warped interpretation of both the Establishment Clause and the Free Exercise Clause. He describes in Espinoza how it has allowed states to pit the two religion clauses against each other. States can now argue that a law that infringes on free exercise rights is necessary to prevent an establishment of religion. The Establishment Clause is used to fend off the Free Exercise Clause.

A perfect example of this is Locke v. Davey. In that case, the Supreme Court held that a law prohibiting a student from using a state scholarship toward his theology degree did not violate his free exercise rights because the state had an interest in avoiding an establishment of religion. The same thing happened in Espinoza. Montana defended its law, which excluded religious entities because of their religion, on the grounds that it prevented an establishment of religion. One religion clause was used to neuter the other.

Strict separationism also operates on an incorrect understanding of the word “establishment.” Justice Thomas has repeatedly explained that “establishment” originally referred to governmental coercion of religious belief. This standard is a far cry from the current view of the Establishment Clause, which combines strict separationism and militant relativism to create a regime in which states can use the religion clauses to justify infringements on religious exercise. Locke provides an example, writes Justice Thomas, of how far the Court has strayed from the original meaning of establishment. In Locke, “[t]he State neither coerced students to study devotional theology nor conscripted taxpayers into supporting any form of orthodoxy,” but the “wall of separation” proved insurmountable for the Court once again.

The dissenting opinions in Espinoza operate entirely under this false conception of the Establishment Clause. Justice Ginsburg argues that the Montana Supreme Court’s invalidation of the scholarship program was necessary in order to maintain separation between religious schools and the government. This argument falsely assumes that a “wall of separation” is the aim of the Establishment Clause. Likewise, Justice Breyer cites a law review article titled After Establishment: Thomas Jefferson’s Wall of Separation in Antebellum Virginia to argue that the Establishment Clause “forbids government support for religion.” This statement both assumes the truth of strict separationism and contradicts the original meaning of “establishment.”

Justice Thomas’ Establishment Clause originalism should give hope to defenders of the Constitution, but his most powerful contribution in Espinoza is his brutally honest assessment of how the strict separationist model reflects American society’s view of religion. He characterizes the modern Establishment Clause framework as a “type of content-based restriction” that thinly disguises the Court’s evaluation that “religion is dangerous and in need of policing.” This comparison is bolstered by the historical evidence, which shows that strict separationism was initially used – even by the Court itself – to target disfavored religious groups. Justice Thomas provides examples of how the Court has, over the years, characterized religious groups as dangerous and divisive forces that must be guarded against. Cultural absorption of these sentiments has led to a societal atmosphere in which “mere exposure to religion can render an ‘offended observer’ sufficiently injured to bring suit against the government, even if he has not been coerced in any way to participate in a religious practice.” This viewpoint obviously contradicts the original meaning of “establishment,” but it also illuminates American society’s view of religion as a whole. As Luke Goodrich has pointed out in his book Free to Believe: The Battle Over Religious Liberty in America, modern American culture views private religion as acceptable but sees public religion as an affront to society that must be snuffed out. Justice Thomas has no qualms about pointing this out to the Court: “The Free Exercise Clause . . . rests on the lowest rung of the Court’s ladder of rights, and precariously so at that.” And the strict separationist view of the Establishment Clause is designed to keep it there.

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