Doubting Thomas

Don't Trust This Justice's Church-State Views

Here's a quick pop quiz: What century is it?

Not too hard, right? Everyone knows it's the 21st century. Everyone that is, except Supreme Court Justice Clarence Thomas. He seems firmly mired in the 18th century – or perhaps the 15th.

The high court recently threw out a challenge to "under God" in the Pledge of Allegiance, holding that the man who brought the case lacked legal "standing." The court's action captured headlines, but lost in the shuffle was a rather remarkable concurring opinion authored by Thomas.

Thomas doesn't think "under God" in the Pledge is a violation of church-state separation. No surprise there. But then Thomas went completely around the bend. States, he wrote, are not required to abide by the separation of church and state. The part of the First Amendment that bans the "establishment of religion," he says, confers no rights on individuals.

Under Thomas' view, a state could set up an official religion. Utah could declare itself officially Mormon. Alabama could proclaim the Southern Baptist denomination its favorite. Massachusetts could be officially Roman Catholic.

Public schools could have state-sponsored prayer every day. Churches and their activities could be funded with tax dollars. There would be no wall of separation between church and state, at least as far as state governments go.

Buried deep within Thomas' opinion, there is a tiny kernel of truth: The First Amendment, as originally written, applied only to the federal government. That's why the provision begins with the word "Congress."

Early American leaders like James Madison and Thomas Jefferson hoped the states would follow the national model and get rid of their established churches. When states began doing so, the two rejoiced.

There the matter rested for a number of years. After the Civil War, Congress passed a series of constitutional amendments designed to ensure that Southern states did not return former slaves to a position of servitude. One of these was the 14th Amendment.

The language of the 14th Amendment makes it clear that states must abide by the freedoms found in the Bill of Rights. The Supreme Court, stacked with ultra-conservatives in the latter half of the 19th century, resisted this. But by the early 20th century, the court had finally come around.

The high court began mandating that states abide by protections found in the Bill of Rights. In 1940, in a case called Cantwell v. Connecticut, the high court ended all doubt and declared that the entire Bill of Rights is binding on the states.

Stuck in previous centuries, Thomas would like to pretend that this history never happened.

On the Supreme Court, Thomas is known for his reticence. Perhaps he should speak up more often and ask questions. He might learn something.