Constitutional horror: Clarence Thomas argues states can establish official religion

[KamaAina]

http://www.patheos.com/blogs/progressivesecularhumanist/2014/05/constitutional-horror-clarence-thomas-argues-states-can-establish-official-religion/

Supreme Court Justice Clarence Thomas argues states may establish an official state religion, and sees no problem with an individual state making Christianity the official state religion.

Thomas believes the First Amendment’s Establishment Clause does not apply to the states. The Establishment Clause is that part of the First Amendment that says “Congress shall make no law respecting an establishment of religion.”

The Establishment Clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another, or none.

While Thomas believes that the Establishment Clause “probably” prohibits the federal government from establishing an official, national religion, he sees no problem with individual state establishing an official state religion.

[Baitball Blogger]

1. Now we know why he was quiet for so long.

He was harboring very radical ideas.

[brooklynite]

2. That's not a new assertion...

...conservatives have been making that argument for years.

[yellowcanine]

80. No its not but but the precedent of application to the states is mostly settled.

The big case was the Warren Court case in 1962 banning prayer and bible reading in public schools. The legal reasoning behind applying the Establishment Clause to the states is embedded in the 14th amendment.

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This has been interpreted in numerous SCOTUS cases to mean that the Establishment Clause as well as all of the other protections under the Bill of Rights, apply to the states as well as Congress. It is indeed ironic that Clarence Thomas, a descendant of slaves, would be so ignorant about something based on the 14th Amendment, which was added mainly to prevent former Confederate States from denying the civil rights of former slaves. Indeed, the fight over school desegregation in the 1950s and 1960s would have been greatly compromised if states would have been allowed to support the religious "white academies" which were set up to help white parents keep their children out of integrated schools. A great deal of the effort to funnel state money into "charter schools" and private religious schools is based on similar sentiments, imo.

[blm]

3. Crazy fascist

.

[Stuart G]

4. I do not think that is what the founders had in mind when they wrote Ammendment I

Thomas

[Auggie]

7. +1,000,000

[dsc]

26. actually you would be wrong on that

many states that ratified the Constitution, including amendment 1, had official religions. Maryland was officially Catholic for example. What applied that amendment to the states was the 14th amendment via incorporation.

[LongTomH]

78. Correct! The Incorporation Clause of the 14th Amendment applied the Bill of Rights to.......

.......the states: Incorporation of the Bill of Rights.

[rug]

79. Thomas has always been a stranger to the 14th Amendment.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[ChisolmTrailDem]

5. OMG! Fuck that shit! I'm not going to have some fairy tale forced on me by ANY government! WTF

is happening to this country when we are forced to accept mythology as an "official" policy??? Is there any place safe on the planet from this nonsense???

[KansDem]

31. Couldn't have said it better myself!

re·li·gion (rĭ-lĭj′ən)
n.
1.
a. The belief in and reverence for a supernatural power or powers, regarded as creating and governing the universe.


myth (mĭth)
n.
1.
a. A traditional, typically ancient story dealing with supernatural beings, ancestors, or heroes that serves as a fundamental type in the worldview of a people, as by explaining aspects of the natural world or delineating the psychology, customs, or ideals of society.

[nadinbrzezinski]

6. Anybody who bothers reading into the Federalist

Society, which Clarence is more than just a fan, is going how is this surprising? The federalist Society has been making this claim for decades. Why none belongs in the U.S. Supreme Court. Yes, this is the least radical of their lovely ideas.

[treestar]

8. The 14th Amendment says

That no state shall make laws depriving the People of the rights the federal constitution says.

Furthermore most state constitutions also have a version of the First Amendment.

[CanonRay]

16. Oh that pesky 14th amendment. Clarence hasn't read that far yet.

Can't this guy get hit by a bus, or have a massive coronary, or something. Soon please. I know, I know, I'm nasty and over the top, but I'm just so sick of both him and Scalia.

[jberryhill]

27. Notice that the article, from last year, does not quote Thomas or identify the decision

Not that it matters, since Thomas is pretty whacked out, but that is a remarkably uninformative write up.

[hughee99]

70. It's tough to call bullshit on someone when they provide no verifiable facts.

A lesson far to many "journalists" have learned in recent years.

[steve2470]

71. it was a poor article, about Town of Greece, NY v. Galloway 134 S. Ct. 1811 (2014)

http://www.supremecourt.gov/opinions/13pdf/12-696_bpm1.pdf

[jberryhill]

74. Yeah, there's no question that Thomas is pretty dumb

I just can't understand why a poorly written article from a year ago is news.

[philosslayer]

73. Not to quibble...

But how would establishing an "official Religion" for a state deprive anyone of a right? An official religion would be largely ceremonial. Stupid, but ceremonial. For instance, there are official trees, official songs, official birds, etc.

[hifiguy]

9. The Incorporation Doctrine

which means that the guarantees of the Bill of Rights are also binding in full on the states, has been settled law for the better part of 100 years. Uncle Ruckus has been eating too many r*tard sandwiches. How the FUCK did this imbecile ever make it through law school?

This cretin has no business being a night traffic court judge in East Jesus, Montana.

[Ratty]

21. Incorporation. That was my first thought

And I'm not even a lawyer. I figure there either must be some legal subtlety here which is beyond me or Thomas is just bat shit crazy.

https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

[hifiguy]

22. uncle Ruckus is as crazy as his namesake.

[Angry Dragon]

30. Could you change the type of sandwiches??

[treestar]

36. lol East Jesus Montana

I guess he took the bar so long ago, he's forgotten the basics of Con Law

[LittleBlue]

45. Now every time Thomas' name comes up, I also think of Ruckus

"I was happy at the back of the bus"

[hifiguy]

48. That meme certainly fits Thomas...

[backscatter712]

49. When he dies, does he get to go to White Heaven?

[ananda]

10. Now that is scary!

Geez

[jwirr]

11. Thomas - do you understand that state religion was what most of our ancestors camne to this

country to escape?

[Taitertots]

14. Actually, many came to start their own established religions

[jwirr]

18. After the state religion would not allow them to practice their own religion. All over Europe they

were fighting wars over what religion they were supposed to be. Among the victims were of course the Puritans, the Pilgrims, the Quakers, Catholics, Lutherans, Anabaptists, etc.

Germany did not become a unified state but they had small provinces that all were able to dictate the religion you were supposed to be.

And of course when they got over here they started their own religions.

[Taitertots]

51. Do you know what an established religion is?

They came to the U.S. and formed established ("state&quot religions.

"And of course when they got over here they started their own religions"
They started their own state (established) religions.

[jwirr]

81. The early settlers all came on the same ships, lived in a certain area where they started their own

churches. When the Quakers got into a disagreement with the people of Massachusetts they just moved to Rhode Island and established their own area.

You are the one who does not know what a state religion is: It is not an established church. It is a religion that is determined by the state to be the only religion of a certain nation. By the laws of a country. Also in a country that has a state religion other religions are not legally acknowledged.

In our nation the church and state are separate unless you are a rwer. They want to establish a state church - their own religion. In this context state and established are not the same. Established as you are using it means that these churches exist and have structure.

That is why freedom of religion was included in the Constitution. So that the country could not establish any religion and exclude any.

[Taitertots]

87. You are mistaken regarding the definition of "Established"

"Established as you are using it means that these churches exist and have structure."
No. I'm using the standard dictionary definition.
http://www.thefreedictionary.com/Establishment+of+religion

"That is why freedom of religion was included in the Constitution. So that the country could not establish any religion and exclude any. "
No, the establishment clause (not freedom of religion) was included. Because people in established religions were afraid that congress would separate their churches from the state. Established religions weren't shut down when the constitution was ratified.

"When the Quakers got into a disagreement "
The "disagreement" was that they didn't want to have to pay taxes to support other people's established churches.

[jwirr]

91. The dictionary definition indicates the Church of England as an exampe. A church that by law is

the only official church in England. A church that has the Queen of England as it head. That does not mean in recent years they haven't allowed other churches to exist but that is not what was happening when our ancestors left England. The other churches were persecuted. The dictionary definition is talking about my definition of a state church. We have never had a Church of the USA. And the job of president does not include being the head of a church.

As to the separation of church and state and freedom of religion - I do not know where you learned your history but it is not correct. That is what the rwers want you to believe today. I was a history major in religious history. World religious history.

That clause referring to "establishing religion" is saying that the government (the state) cannot establish a church - like the church of England and most of the other countries in Europe at the time.

So since you say the "established" churches were not shut down when the constitution was ratified - where are those churches today? As far as I know my government has no laws telling me which church I have to belong to.

And the disagreement between the Massachusetts Bay Colony and the Quakers was long before the constitution was written. Long before the Revolution. The constitution included a way to keep from further religious wars like the ones that had happened in Europe for centuries. It also freed the people of the USA so that they could belong to any religion they wanted to.

[pinto]

12. Nominated by George H. W. Bush...

[Paladin]

52. And confirmed after he panicked and played the "high-tech lynching" card.....

What a miserable excuse for a SCOTUS justice.....

[Taitertots]

13. Antidisestablishmentarianism is not a new thing

Most people like to ignore Americas history regarding established religions.

[KamaAina]

17. But using it in a sentence is!

[malthaussen]

23. I'll bet he's been waiting for years.l.. n/t

[Taitertots]

50. I had a course in college about the history of economics and religion

Antidisestablishmentarianism was the subject of one of our essays.

[Dr. Strange]

15. Makes about as much sense as saying the First Amendment doesn't apply to blasphemy...

which is to say, not a lick of sense.

[Coventina]

19. That is truly horrifying.

[MohRokTah]

20. Why does Thomas hate the 14th amendment?

[malthaussen]

24. That would be because he hates the USA. n/t

[SwankyXomb]

88. Justice Sleepy

doesn't think Americans should have any individual rights.

[Octafish]

25. Guy should be unanimously impeached.

Today.

[NV Whino]

28. Clarence opened his mouth?

Will wonders never cease.

[KamaAina]

33. I think he was about to shove his foot into it

[NV Whino]

34. Ah, that explains it.

[hifiguy]

35. They're gonna need the Jaws of Life

to get that shoe out of his piehole.

[Orsino]

75. And nothing good comes out. n/t

[yellowcanine]

83. No. It was in a written dissenting opinion in 2014.

One of those "Ten Commandments in the courthouse square cases" I believe. But don't remember.

[NV Whino]

86. What a relief

I was so worried that he had actually said something.

[Angry Dragon]

29. Islam coming to a state near you

[treestar]

38. He has not problem with making Christianity a state religion

He didn't mention others. I suppose he has some legal theory for why only Christianity would work.

[yellowcanine]

84. I was hoping for the Church of the Flying Spaghetti Monster in Utah.

Orrin Hatch could be a High Priest.

[Adsos Letter]

32. This also jumped out at me:

...Thomas believes that the Establishment Clause “probably” prohibits the federal government from establishing an official, national religion...

Probably?

[treestar]

37. Noticed that too

Reads kind of clearer than that to me.

[former9thward]

39. There is not a single quote from Thomas in the OP or the link.

Why?

[KamaAina]

40. Dunno. But there are two summaries of his position:

MSNBC summarizes Thomas’ official opinion:

“If policymakers in your state chose today to establish Christianity as the official state religion, Clarence Thomas believes that would be entirely permissible under the First Amendment.”

It is a position Thomas has staked out before. In 2011 Thomas made a similar argument. Rob Boston, writing for Americans United, summarized Thomas’ position:

“Perhaps most shockingly, Thomas once again states his view that the First Amendment’s religious liberty provisions apply only to the federal government. In his view, the 50 states are free to “establish” any religion they want. In Thomas’ world, the Fourteenth Amendment to the Constitution was apparently never ratified.”

[former9thward]

43. Sorry, I don't accept summaries from reporters on legal matters.

I have yet to find one that was even close to being accurate. If Thomas has wrote these things it would not be hard to reproduce them.

[steve2470]

56. there ya go

http://blogs.wsj.com/law/2014/05/09/justice-clarence-thomas-and-the-church-of-virginia/

[Cerridwen]

57. Here ya go. Direct link to .pdf of opinion. (edited for subject line)

link to Opinion: http://www.supremecourt.gov/opinions/13pdf/12-696_bpm1.pdf

[center]TOWN OF GREECE, NEW YORK, PETITIONER
v.
SUSAN GALLOWAY ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT[/center]

thomas' opinion begins page 42

<minor snip>

As an initial matter, the Clause probably prohibits Congress from establishing a national religion. Cf. D Drakeman, Church, State, and Original Intent 260–262 (2010). The text of the Clause also suggests that Congress “could not interfere with state establishments, notwithstanding any argument that could be made based on Congress’ power under the Necessary and Proper Clause.” Newdow, supra, at 50 (opinion of THOMAS, J.). The language of the First Amendment (“Congress shall make no law”) “precisely tracked and inverted the exact wording” of the Necessary and Proper Clause (“Congress shall have power . . . to make all laws which shall be necessary and proper . . . ”), which was the subject of fierce criticism by Anti-Federalists at the time of ratification. A. Amar, The
Bill of Rights 39 (1998) (hereinafter Amar); see also Natelson, The Framing and Adoption of the Necessary and Proper Clause, in The Origins of the Necessary and Proper Clause 84, 94–96 (G. Lawson, G. Miller, R. Natelson, & G. Seidman eds. 2010) (summarizing Anti-Federalist claims that the Necessary and Proper Clause would aggrandize the powers of the Federal Government). That choice of language—“Congress shall make no law”— effectively denied Congress any power to regulate state establishments.

<snip because formatting .pdf to text sucks. bolding added>

[steve2470]

58. yep you nailed it, way to go!

I love it when we can be proven CORRECT.

[Cerridwen]

61. If nothing else, it's at least a direct link to the opinion and wording used

to paraphrase thomas in various articles about the ruling.

[former9thward]

63. Its not correct.

That opinion does not say what the OP said. Non-lawyers trying to summarize legal rulings and getting it wrong. SOP.

[steve2470]

65. why are you nitpicking ?

I grant you, the OP isn't 100% on point. Thomas is wrong. Do you agree with Thomas ?

I await your learned response.

[former9thward]

67. I will give you a response.

Whether it is learned or not is anyone's guess. I don't think he is correct. I believe the Supreme Court has been correct in applying all of the Bill of Rights -- including the hated 2nd -- to state and local governments. Do I think there is an academic legal argument that can be made about state religion? Yes I do given the history of state and local religion in 1789 but society has moved on. It would have been an interesting debate in 1805 but is no longer relevant in 2015.

[steve2470]

69. thank you for an intelligent civil response! :) nt

[former9thward]

62. Ahhh, no

None of the above states what the OP said. Thomas is recounting history. Six of the initial states had state religions at the time of the ratification of the Constitution. MA did not get rid of theirs until 1833.

[Cerridwen]

66. Ahhhh, yes. I provided a direct link to the opinion referred in the article.

Since you said:

Sorry, I don't accept summaries from reporters on legal matters.

I have yet to find one that was even close to being accurate. If Thomas has wrote these things it would not be hard to reproduce them.

No need to "accept summaries;" I provided a direct link.

You're welcome.

[former9thward]

68. I read it.

And it does not support the OP.

[Cerridwen]

72. Ah. Different goal posts.

Not here long enough to participate in that discussion.

Have a great day.

[Skittles]

41. Clarence is an embarrassment to the court and to the nation

seriously, how the FUCK did he get on the Supreme Court - UGH

[KamaAina]

42. They needed a black guy to replace Thurgood Marshall

Apparently he was the best the conservatroids could dredge up.

[Kurska]

44. Hello Fourteenth amendment anyone?

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

[olddots]

46. and we can't complain .......

he was appointed by royalty in The Royal Scam .

[Terra Alta]

47. Seriously?

What would it take to impeach a Supreme Court Justice? Because he seriously needs to go, and take his pal Scalia with him.

[Tsiyu]

53. Well, don't we in the US just have

the best Supreme Court justices money can buy!

Way to go, Clarence. And some day, when people get sick of Christianity, they can establish Paganism as the state's religion! Yippee.

That's a door the fundies may not want to open, because it may give us a way to finally outlaw them altogether! WOOHOOO!!!!

"Sorry, but our official state god is the Flying Spagetti Monster, and you Christians are NOT eating your daily allotment of linguine! To jail with the lot of you!" Oooh, that could be so fun. Every state could have its own official faith!

[steve2470]

54. how the fuck did this guy ever graduate law school ?

Hell, I dropped out of law school, and even I know he's wrong. So dead wrong.

WTF.

[SwankyXomb]

89. According to Clarence himself, Affirmative Action. n/t

[Unvanguard]

55. This isn't especially new. He's had this view forever.

The argument is that it is a structural principle rather than an individual right, so it isn't incorporated by the Fourteenth Amendment against the states.

[Agnosticsherbet]

59. It appears he would like to see Everson v. Board of Education of the Township of Ewing swept away.

Everson v. Board of Education of the Township of Ewing
“The establishment of religion clause means at least this: Neither a state nor the federal government may set up a church. Neither can pass laws that aid one religion, aid all religions, or prefer one religion over another. Neither can force a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion… . Neither a state or the federal government may, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and state.’”

The Roberts Court has not been shy about weeping aside established law.

[Agnosticsherbet]

60. Establishment clause overview

Establishment clause overview
Friday, September 16, 2011

The first of the First Amendment’s two religion clauses reads: “Congress shall make no law respecting an establishment of religion … .” Note that the clause is absolute. It allows no law. It is also noteworthy that the clause forbids more than the establishment of religion by the government. It forbids even laws respecting an establishment of religion. The establishment clause sets up a line of demarcation between the functions and operations of the institutions of religion and government in our society. It does so because the framers of the First Amendment recognized that when the roles of the government and religion are intertwined, the result too often has been bloodshed or oppression.

For the first 150 years of our nation’s history, there were very few occasions for the courts to interpret the establishment clause because the First Amendment had not yet been applied to the states. As written, the First Amendment applied only to Congress and the federal government. In the wake of the Civil War, however, the 14th Amendment was adopted. It reads in part that “no state shall … deprive any person of life, liberty or property without due process of law… .” In 1947 the Supreme Court held in Everson v. Board of Education that the establishment clause is one of the “liberties” protected by the due-process clause. From that point on, all government action, whether at the federal, state, or local level, must abide by the restrictions of the establishment clause.

A very good article that covers the Establishment clause.

[Arugula Latte]

64. Okay, then my state is going to go for the Church of FuckClarenceThomas.

Our deeply held belief is that if he ever sets foot in our state we must -- to please our deity, of course -- push Clarence Thomas off of the highest cliff in the state.

[samsingh]

76. what if its scientology or islam?

[KamaAina]

77. Clearwater, FL might very well establish $cientology

[samsingh]

85. how are such stupid people as clarence judges?

i guess he doesn't believe in the Constitution.

[workinclasszero]

82. This is why me MUST have a democratic win in 2016!

If one of those teahaddists get elected they will pack the SCOTUS with Thomas clones and you can kiss freedom goodbye forever in America!

[lpbk2713]

90. Did he ever take a class in high school Civics?

If he did he must have been playing with himself the whole time.

[KamaAina]

92. While drinking Cokes