As the U.S. Supreme Court pondered the question of prayer at government meetings, Justice Clarence Thomas wrote this week that the First Amendment of the Constitution does not preclude states from establishing state religions if they choose to do so. From the Wall Street Journal Law Blog:
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.”
Read full story here. (The Los Angeles Times notes that even Justice Antonin Scalia wouldn’t back Thomas on this one.)
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If Thomas’ theory were correct, it would also apply to the other rights enumerated in the first amendment: speech, press, assembly, and petition.
This is strict construction and decontextualization over common sense.
Justice Thomas needs to read on to the 1868 14th Amendment that forbids states denying rights guaranteed by the Federal Bill of Rights. It overturned the Dred Scott Decision and without it Mr. Thomas’ ancestry might have kept him from being a citizen much less a Justice of the Supreme Court. But then no law can foresee every contingency.