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June 14, 2004

Thomas: States Can Establish Religion

The Newdow "Pledge of Allegiance" case was dismissed by the majority of the Court on technical standing grounds, but the action was in the Court dissents.

Justices Rehnquist took the boringly obvious conservative position that "under God" is just ritualistic and non-coercive, so it can't be a violation of the Establishment Clause.

But Justice Thomas, he went over the rainbow. He actually agrees with plaintiff Newdow that the Pledge IS coercive and does force a student to "declare his belief in God." On this basis, Thomas declares:

I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional.

But Thomas doesn't stop there. He then declares that those precedents were wrongly decided. No, not a few of them-- ALL the Establishment Clause decisions were wrongly decided:

The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments.

i.e. states are free to establish official state religions, as long as they don't violate individual "free exercise" rights.

Thomas hedges his comments a bit, but the bottom-line is that he argues that as long as dissenters aren't punished for their views, or one sect given extra financial resources versus another, the state is free to promote whatever religious views it deems appropriate.

Give Thomas credit. He calls Rehnquist and O'Connor on the ridiculousness of claiming that a la previous Court precidents, voluntary prayer at a football game is unlawfully coercive, but a daily mandatory pledge "under God" somehow is non-coercive.

I actually think Thomas has this one right (even though I'd go the opposite way from him-- one of my few judicial activist positions). Either you overturn most of the previous Establishment precedents, or the "under God" in the Pledge is unconstitutional.

Posted by Nathan at June 14, 2004 08:35 PM