Justice Thomas: State Religions Are OK

May 6, 2014

Clarence ThomasThe Supreme Court issued its decision in Town of Greece v. Galloway yesterday, holding that the town’s practice of offering a prayer at the start of town meetings did not violate the First Amendment’s Establishment Clause.

The decision was 5-4, but it was a bit more complicated than the typical liberal/conservative split that we see so often. Justice Kennedy wrote the controlling opinion, joined in full by Chief Justice Roberts and Justice Alito. But Justice Thomas and Justice Scalia did not join the opinion in full. Alito wrote a concurring opinion, joined by Scalia. And Thomas wrote a concurring opinion too, joined only in part by Scalia. In other words, the conservative majority agreed that the town’s prayer practice was not unconstitutional—but they couldn’t quite agree entirely on the rationale behind their decision.

Justice Kagan wrote a dissent, joined by all the “liberal” justices. And Justice Breyer wrote his own solo dissent, too, focusing on the particular facts of this case.

The case is interesting and important, in the context of Establishment Clause decisions, and it has already attracted—and will continue to attract—a lot of attention. But one nugget that I thought was worth some added attention is the first section of Justice Thomas’s concurring opinion, which was not joined by any other justice.

According to Thomas (and this is not new—he’s taken this position before), the First Amendment’s Establishment Clause applies only to the U.S. Congress (“Congress shall make no law respecting an establishment of religion”)—meaning it applies only to the federal government. Pointing to the fact that some states did have established religions at the time the Constitution was ratified, and that some did not disestablish their religions until decades later (Massachusetts did not disestablish its state religion until 1833), Thomas—with clever wordplay—says the First Amendment is “simply agnostic on the subject of state establishments.” Thomas notes that it’s possible the Establishment Clause took on a different meaning through Reconstruction and the adoption of the Fourteenth Amendment in the 1860s. But he says the historical evidence for such an argument is “mixed,” and he’s not convinced.

In other words, according to Justice Thomas, though it’s impermissible for the federal government to establish an official religion, an official state religion might be just fine.

It’s hard not to speculate how this might play out. The most obvious candidate is Utah—which, according to recent numbers, is about 62% LDS (Mormon). And its state politics are dominated by Church members. If they wanted to, Utah Mormons could legislatively establish The Church of Jesus Christ of Latter-day Saints as the state’s official religion without much struggle. And of course some of the state’s non-Mormons would surely sue, to challenge this establishment.

Wouldn’t that be a fascinating case? Or what about a more local government—a county or city in Utah that is, say, 92% Mormon? Or even a small county or city in Texas or any other state, where 90% of the local population belongs to a particular religion—can these smaller, homogenous communities establish an official religion? According to Justice Thomas they might be able to.

But until someone tries it—until something like this happens—we won’t have a final answer to the question raised by Justice Thomas, regarding the application of the Establishment Clause against the individual states and local governments.