Last week I reported on Justice Thomas’ citation of my work in his concurring opinion in Town of Greece v. Galloway, a widely-discussed decision on the Establishment Clause of the First Amendment. This week, I’ll put the decision in context.
The meaning of the Establishment Clause (”Congress shall make no law respecting an establishment of religion”) has long been debated. Here are some of the hypotheses advanced:
* The Founders created a “Christian nation” in which the federal government could promote Christianity. The Establishment Clause assured, however, that the federal government would not favor any denomination of Christians over any other. This was the view of the great 19th century Supreme Court Justice and law professor Joseph Story.
* The Establishment Clause was adopted principally to protect the states from federal interference with their own established churches. This is Justice Thomas’ view.
* The Establishment Clause was adopted to protect the states from federal interference with their own established churches, but also to require the federal government to treat all religions equally. The Clause did not, however, place atheism or agnosticism on a par with religion. This conclusion is called “non-preferentialism.”
* The Clause not only protected the states from federal interference with their own established churches, but also required the government to treat all religious opinions, including atheism and agnosticism, equally. This formulation is called “neutrality,” and former Justice David Souter was one of its exponents.
* The Clause required the government to lean over backwards to avoid any entanglement or appearance of favoritism for religion. This is called “strict separation.”
There have been various modifications and blending of the views listed above, including a rather incoherent version called “accommodation,” a doctrine followed late in the 20th century by some of the more conservative justices.
Beginning in the 1940s (although with roots earlier), the Supreme Court issued a series of “strict separation” cases and imposed them on the states as well as well as on the federal government. It soon became evident that strict separation was both impractical and contrary to the actual meaning of the Establishment Clause. Accordingly, in the 1970s the Court began a long journey from strict separation, wandering through “neutrality” and “accomodation,” and toward non-preferentialism.
The Town of Greece case seems to complete this journey. Justice Thomas’ concurrence aside, all the opinions—majority and dissent—are squarely non-preferentialist. All acknowledged that the Town could sponsor prayers before Town Board meetings. The writer of the dissent, Justice Kagan, even affirmed explicitly her support for civic prayer. The only real dispute was over whether the Town had treated all religions fairly when selecting clergy to perform the invocation. The majority thought the Town had been fair, at least on balance. The dissent thought it had unfairly favored Christianity over Judaism and other religions adhered to by citizens of the Town. But that was a dispute over the facts, not over legal doctrine.
Several years ago, I wrote an article for the William and Mary Bill of Rights Journal entitled The Original Meaning of the Establishment Clause. As someother scholars had concluded before me, I found that non-preferentialism was, in fact, the intent of those who adopted the Establishment Clause: both protection of state established churches and equal congressional treatment of all religions.
This conclusion seems to be a little different from that of Justice Thomas: I believe the Clause was, in addition to a protection for federalism, a positive guarantee to all religious believers. Perhaps this is why Justice Thomas cited my writings on the Necessary and Proper Clause rather than those on the Establishment Clause!
In any event, with the Town of Greece case the Court’s Establishment Clause jurisprudence returns to the original meaning. Whether that jurisprudence should be imposed on the states is another matter, and Justice Thomas may well be correct that it should not.
That last question involves considering (in my opinion) not the Establishment Clause, but the “incorporation doctrine”—the doctrine by which the Supreme Court imposes nearly all of the Bill of Rights on state governments as well as on the federal government. The incorporation doctrine is a topic for another time.