Justice Thomas in Newdow

Douglas Laycock DLaycock at mail.law.utexas.edu
Thu Jun 17 14:20:45 PDT 2004

         The LA Times story is available on Westlaw for those who would 
like to read it without giving their phone number and income to the LA 
Times.  Expletives deleted.

         Obviously the way you would explain what is wrong with Thomas's 
opinion on this list is different from how you would capsulize it in a 
sentence or two (selected by the reporter) for an "explanation" to the 
public.  But I do think that Thomas's opinion is both extreme and wrong.

         He did not say merely that the clause does not apply against the 
states.  He also said that the clause creates no individual rights.  The 
only apparent application of this second pronouncement is that it creates 
no individual rights against the federal government either.  So every 
Establishment Clause case the Court has ever decided would be obliterated 
at a stroke.  He seems to assume that the free exercise clause would 
prevent coerced attendance at religious services -- unless, we have to 
assume, the service is rather short and is incorporated into some other 
official event that people attend for secular reasons.

         I do not doubt that one meaning of the Clause in 1791 was that the 
federal government could not interfere with establishments in the 
states.  But I am equally sure that one meaning of the Clause in 1791 was 
that the federal government could take no steps toward a federal 
establishment of religion -- not in the states, and not in the federal 
district either.  Either a federal establishment or a federal interference 
with a state establishment would be a law respecting an establishment.

         The debate in the First Congress did not focus on the federalism 
implications.  It focused on the meaning of establishment, and on how far 
the federal government should be restricted.  The argument for prohibiting 
only preferential aid to favored denominations was rejected; the most 
broadly worded draft proposed was adopted.  This of course goes to the 
debate over nonpreferentialism; but even before that, it goes to whether 
this Clause was only about federalism, or also about the proper 
relationship between religion and government.  The debate was plainly about 
the latter; I think the federalism-only interpretation is demonstrably wrong.

         I'm not sure the federalism principle that can be derived from the 
verb "respecting" and the existence of state establishments is much 
different from the federalism principle that is implicit in the 
constitutional structure about other individual rights good only against 
the federal government.  Certainly the federal government in 1791 had no 
general power to protect individual liberties against state restrictions on 
free speech (blasphemy, defamation, perhaps others) or free exercise 
(voting confined to Christians, or to Protestants; the Lousiana law on 
Catholic funerals that got to the Supreme Court in 1845 and produced a 
repeat of Barron v. Baltimore); or any other individual right.  Any attempt 
to incorporate implicit and explicit rules that the federal government 
could not interfere with state restrictions on liberty would indeed lead to 

         What is incorporated is the protection for individual liberty in 
each constitutional right.  The states cannot do to citizens what the feds 
could not do to citizens.  The restrictions on government sponsorship of 
religion play an essential role in protecting the religious liberty of 
individuals; I am entirely comfortable concluding that those restrictions 
are a privilege or immunity of citizens of the United States, just like the 
restrictions on government interference with free speech or free 
exercise.  I understand the argument that the Establishment Clause doesn't 
speak to what government can do to individuals in the same way as the other 
provisions of the Bill of Rights, but I think that badly underestimates the 
role of the Establishment Clause in protecting individual liberty.

At 02:25 PM 6/17/2004 -0500, you wrote:
>Dear all,
>I apologize in advance, if I missed the list's discussion of Justice 
>Thomas's views regarding the incorporation of the Establishment 
>Clause.  For what it's worth, I've been surprised by the vigor with which 
>several prominent scholars have disapproved these views.  Jack Balkin 
>remarked, for example (www.balkin.blogspot.com), "[n]ow we know what it 
>would be like to have Judge Roy Moore on the Supreme Court."  Brian Leiter 
>concludes that Justice Thomas has "solidif[ied[ his status on the lunatic 
>(http://webapp.utexas.edu/blogs/archives/bleiter/001452.html).  And Doug 
>Laycock states that Thomas's "is a pretty astonishing view. . . . He acts 
>as though the Civil War didn't happen, or it didn't matter" 
>It strikes me, though, that Thomas's observations, in Part II-A of his 
>opinion, are not particularly astonishing, and certainly do nothing to put 
>him on "the lunatic fringe."  Does he say anything, in that Part of the 
>opinion, that Steve Smith, Philip Hamburger, Gerry Bradley, Akhil Amar, 
>and many others have not also said, namely, that the point of the 
>Establishment Clause was to protect the States' then-existing 
>"establishments" and perhaps also, more generally, to leave questions of 
>church-state relations to the States?  And, with all due respect to 
>Professor Laycock, I'm not sure it is fair to conclude that, because 
>Justice Thomas agrees with those who believe that the Establishment Clause 
>is particularly, and perhaps uniquely, unsuited for incorporation via the 
>14th Amendment (but see, e.g., Kurt Lash), he is therefore unmindful of 
>the (obvious) sweeping changes that the post-Civil War Amendments worked 
>in the constitutional law of individual rights.  (Recall, for example, his 
>passionate concurrence in Zelman).
>Now, I'm inclined to think that, merits aside, the matter is water under 
>the bridge, and that Justice Thomas's views on this question -- like his 
>views on the scope of the Commerce Clause -- are not likely to become 
>governing constitutional law.  As Michael Perry likes to put it, the 
>incorporation of the Establishment Clause has become "bedrock."  Still, is 
>there a reason why we should not concede that he is -- or, at least, MAY 
>be -- correct?
>Rick Garnett

Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
         512-232-1341 (voice)
         512-471-6988 (fax)
         dlaycock at mail.law.utexas.edu

More information about the Religionlaw mailing list