Over the last few decades, a religious movement has gained widespread political power with the stated intent of turning back the clock by dismantling the Establishment Clause, which requires separation of church and state. This foundational constitutional protection–which has guaranteed the right to equal treatment of all Americans, regardless of religious belief, and allowed numerous diverse religious beliefs to coexist peacefully and flourish–has never been in greater danger.

By Sonja Dewitt, Esq.

Imagine living in a country where practicing the wrong religious beliefs could get you killed. Imagine a place where you could be banished from civilization and chased into the wilderness in the middle of winter because your religion was banned by the government. Imagine you could not live in certain regions of the country because your religious affiliation was despised and legally prohibited.

North Korea? An Islamic republic? Albania?

No. This was everyday life in Early America. The myth of American religious tolerance masks a dark history of bigotry and persecution, spearheaded and facilitated by established state churches. Many Americans are unaware that the religious freedom which Americans now take for granted was gained only through decades, even centuries, of fierce struggle.

A History of Religious Persecution

Many of the early colonists came to this country with bitter personal experience of oppression, persecution and harassment by an established national church. Nevertheless, among their first acts in the New World was to establish their own state churches and to punish anyone who did not accept their dogmas with the full force of the state.

As Justice Hugo Black said of that period, "In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, non-attendance at those churches, expressions of nonbelief in their doctrines, and failure to pay taxes and tithes to support them." [1]

Fortunately, a few brave pioneers like Roger Williams, the founder of Rhode Island and William Penn, the founder of Pennsylvania, dared to stand against centuries of religious oppression and model the concept of religious freedom in their colonies. Central to their concept of religious freedom was the separation of church and state. This was a radical, unprecedented concept for the time.

Over the next century, enlightened Americans began to see ever more clearly the dangers of an established church. And eventually, following the visionary leadership of Virginia, the concept of separation of church and state became one of the cornerstone freedoms guaranteed by the Constitution's Bill of Rights.

But the fight for complete freedom of religion did not end with the Constitution. Several of the states still had an established state religion, and although overt persecution of non-conformists had diminished, citizens of some states were still forced to pay taxes to support religions they did not believe in, and some states still had religious tests for holding office. It was not until 1833 that the last nominal state establishment statute was repealed.

But even official disestablishment did not end religious discrimination and persecution by the states. Throughout the 1840s, in several states blasphemy (insulting or denigrating the Christian religion) was treated as a crime, and Sunday-keeping was enforced by law. Public schools unapologetically taught the Protestant Bible and mandated Protestant prayers, and children who refused to comply were punished.

A particularly vivid expression of the reasoning of states in this period was made in a seminal case, Ruggles v. People of New York. “Nor are we bound, by any expressions in the constitution…either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the grand Lama; and for this plain reason, that the case assumes that we are a christian people, and the morality of the country is deeply ingrafted upon christianity, and not upon the doctrines or worship of those impostors.”[2]

As late as the late 1840s, many states still had not recognized the dangers of state establishment of religion. They refused to acknowledge that by that favoring Protestant Christianity over other religions, they were violating the very principle of Free Exercise of religion they claimed to be upholding.

But finally, in the 1850s, the tide began to turn, as courts and people alike awoke to the understanding that religious discrimination and persecution were inconsistent with American ideals of liberty and equality. Ironically, it was conflict caused by the influx of Catholic immigrants into the North which finally caused the Protestant majority to rediscover the principle that state establishment of religion is incompatible with freedom of religion.

By the 1860s, the American public had finally recognized that freedom from state establishment was a fundamental right which states, as well as the federal government were required to protect.[3] Sadly, it took over 70 years from America’s founding for the majority of citizens of the United States to understand that all citizens, not just Protestant Christians, were entitled to equal teligious freedom.

Turning Back the Clock

Over the last few decades, a religious movement has gained widespread political power with the stated intent of turning back the clock by dismantling the Establishment Clause, which requires separation of church and state. This foundational constitutional protection–which has guaranteed the right to equal treatment of all Americans, regardless of religious belief, and allowed numerous diverse religious beliefs to coexist peacefully and flourish–has never been in greater danger.

In the Supreme Court, four of the current sitting Justices are already committed to this agenda. And even more alarmingly, when President Trump’s nominee is seated, for the first time this movement will have a majority vote on the Supreme Court, removing the last constraint on their legal agenda.

Since the death of Justice Antonin Scalia, the most open and vocal proponent of this anti-Establishment Clause agenda on the Supreme Court has been Justice Clarence Thomas. Thomas is very vocal about his views. He joined Scalia in dissenting opinions which explicitly rejected the well-established legal doctrine that the government must be neutral, not favoring one religious position over another.

Thomas believes that the government can, without violating the Constitution, favor "religion over irreligion" and "monotheistic religions" over others, at least for the purposes of invoking God by prayer on public occasions. He believes the (monotheistic) public's interest in having the government offer prayers to God trumps the rights of non-monotheists not to be "excluded."[4]

This rejection of the principle of governmental neutrality toward all religions blatantly violates nearly two hundred years of American political philosophy and decades of clear legal precedent. Granted, interpreting the Establishment Clause is a complex and frustrating undertaking, because legal philosophy and actual practice so frequently conflict, and precise boundaries are so difficult to draw.

Regardless, the legal doctrine of government neutrality has been the fundamental underpinning supporting Americans' broad religious rights and robust religious diversity, even when actual practice might seem inconsistent–when, for example, a legislative body opens with prayer, or appoints an official chaplain. For a Supreme Court Justice to explicitly reject the legal doctrine of neutrality is a grim portent for the future of the country.

If Thomas' stated position were to become the law, it would again place Buddhists, Hindus, atheists and agnostics and members of other non-theistic and polytheistic religions at an official legal disadvantage. It would, in essence, make them second-class citizens in American national life, and they would have no legal recourse to protest this “exclusion.” The opinions of the other conservatives on the Court make it clear that they support this general legal approach, even if they do not state it so baldly.

Moreover, Thomas’ use of the term, "monotheistic religions," is merely a transparent code phrase for Christianity, and (possibly) Judaism. It does not take a Constitutional scholar to predict the new majority's position if a government body were to mandate prayers facing Mecca five times a day.

Thomas’ Views on State Establishment

As shocking as this is, Thomas goes even further. He has also explicitly stated that in his view the Constitution allows a state government to establish an official state religion. He bases this on a very technical and historically flawed view of the Establishment Clause.

Thomas' believes that in creating the Establishment Clause, the Founders did not intend to create a right for individuals to be free of an oppressive national church. Rather, he believes that the Establishment Clause was intended merely to remove from the federal government the power to regulate religion and reserve that power to the states–giving states a “green light” to establish their own state churches. [5]

Thomas claims that the fact that several states had official established churches at the time of the Constitution shows that the Framers of the Constitution were not concerned about religious establishment by states.

It is true that when the Bill of Rights was adopted, it was understood only to restrict action by the federal government, not by the states. However, it should be noted that James Madison, the "Father of the Constitution" and primary drafter of the Bill of Rights, foreseeing that the states could also violate individual rights, made a valiant but unsuccessful attempt to include language applying the First Amendment to the states.

It is also true that at the time of the Constitution, several states still had established churches. But the Constitutional Convention was not in a position to abolish state religious establishment, whatever the members’ beliefs on the subject. The majority of the Framers and the people they represented, having recently fought a bloody war against an oppressive centralized government, were understandably wary of a strong central power.

A Constitution which overturned existing state laws would never have been ratified by states fiercely protective of their new and costly independence. States with established religions wanted to ensure that the federal government would not meddle with their laws. Also, the Founders assumed that the states, being easier for the people to control, would be best able to protect the people's rights.

The first words of the Constitution are significant–"We, the people." The Constitution was a statement of rights for people, and the Founders saw states' rights as an avenue for securing individual rights. The ultimate beneficiaries of all constitutional rights–including states' rights–were always the people. Even the Tenth Amendment, which explicitly reserves rights to the states, ends with the words, "and the people."

In the minds of the Founders, power always flowed upwards–from the people to the states to the federal government–and was weakened and diluted with every step upwards. This represented a radical departure from the traditional top-down view–"the divine right of kings,"–which had dominated political theory since prehistory.

“Governments are instituted among Men, deriving their just powers from the consent of the governed,” the Declaration of Independence boldly pronounced. In the same way, all rights were reserved to the people, and the power to restrict those rights was granted, in strictly limited and quantified ways, to the states and the federal government.

Thus, as one legal commentator noted, the provision which removed federal power to regulate religion was paired to a corresponding "immunity" or right of the people to be free of such regulation. [6]

For these reasons, the Constitution set strict limits on the powers of the federal government and reserved many rights to the states. But the silence of the Constitution on state establishment did not signify that the Founders in general supported it, any more than compromises about slavery signified universal agreement that the institution was moral or just.

The Establishment Clause as an Individual Right

The claim that the Founders did not intend Establishment as an individual right falls apart under scrutiny. Even if there were no historical record of the positions of the Framers, the mere syntax of the First Amendment signals that the Free Exercise Clause and the Establishment Clause are intimately and inextricably linked together in support of the same fundamental right. The two clauses are part of a single sentence. Indeed, the Establishment Clause comes first, which could suggest that Establishment was a more urgent concern to the Founders than Free Exercise.

The language chosen for the final version of the Amendment was not casual or accidental. It went through several drafts and was hotly debated, demonstrating that the Framers were acutely conscious of the precise meaning of language and grammar they adopted. One would expect that Thomas, as a legal scholar whose philosophy requires deference to the original meaning of the text of the Constitution, would seriously weigh the grammatical evidence that the two Clauses are linked.

Also, the first eight Amendments of the Bill of Rights include a comprehensive cluster of provisions–all clearly intended to protect individual rights and liberties. There is no question that the Framers of the Constitution were intelligent and logical men, who fully understood the gravity of their task in forming a new nation. They labored painstakingly to create clear, precise and comprehensible statements of rights which they knew would guide future generations.

Given this, it is inexplicable that the Founders would randomly and illogically insert a provision solely concerned with states’ rights into an Amendment explicitly devoted to individual rights and freedoms.

There are other provisions of the Constitution that define the relationship of the federal government and the states and delineate the rights reserved to the states. If the Establishment Clause was intended merely as a reservation of rights to the states, why was it not included in one of those provisions? Instead, it was embedded in the First Amendment, as the first of a string of clear statements of individual rights.

There is ample historical evidence that many of the prominent Framers opposed the establishment of a government religion, and explicitly linked religious establishment to threats against individual liberties. The Founders had learned well the lessons from their own recent history–that the right to Free Exercise was inseparable from the right to be free of government regulation and establishment of religion.

George Mason, a Virginian who served in the Constitutional Convention, wrote in the Virginia Declaration of Rights, “It is contrary to the principles of reason and justice that any should be compelled to contribute to the maintenance of a church with which their consciences will not permit them to join, and from which they can derive no benefit; for remedy whereof, and that equal liberty as well religious as civil, may be universally extended to all the good people of this commonwealth.”

James Madison, the primary drafter of the Constitution, later wrote, “[T]here remains [in some parts of the country] a strong bias towards the old error, that without some sort of alliance or coalition between Govt. & Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both parties, that the danger cannot be too carefully guarded against.” (Letter to Edward Livingston, July 10, 1822).

And from John Adams, who lived in a state with an official established religion, "Every Species of these Christians would persecute Deists, as soon as either Sect would persecute another, if it had unchecked and unbalanced Power. Nay, the Deists would persecute Christians, and Atheists would persecute Deists, with as unrelenting Cruelty, as any Christians would persecute them or one another." — letter to Thomas Jefferson, 25 June 1813.

These statements, and others like them, by George Washington, Benjamin Franklin, Alexander Hamilton, Thomas Jefferson, and others, demonstrate that the Founders clearly understood that freedom from religious establishment was necessary to protect fundamental individual rights guaranteed by the Constitution. One would expect Justice Thomas to understand, as a conservative committed to limited government, that the "Free" in Free Exercise inevitably crumbles under the heavy hand of government regulation.

If Thomas' view were correct–if the majority of those who ratified the Constitution and the Bill of Rights saw it as sanctioning states' regulation of religion, one would expect to see the states hastening to take advantage of this grant of power by creating or extending their religious regulation.

But in fact, the opposite happened. After the Constitution was adopted, no new official state establishments of religion were formed. And those establishments which predated the Constitution rapidly declined both in public support and practical effect.

Incorporation

The second part of Thomas’ argument is that the Framers of the Fourteenth Amendment, adopted in response to endemic violations of the rights of former slaves in the Southern states after the Civil War, did not intend that the Establishment Clause be “incorporated,” into the Fourteenth Amendment, and thus become binding on the states.

The Civil War marked a seismic shift in the constitutional relationship of states to the federal government. The decades-long conflict over slavery had conclusively demonstrated that states were not more reliable guardians of individual rights than the federal government, as the Founders had assumed. The Fourteenth Amendment was passed with the express purpose of ensuring that citizens of states were granted all the fundamental rights guaranteed by the Constitution.

Unfortunately, the intended purpose of the Fourteenth Amendment, to protect the rights of individuals, was subverted for many decades–its protections used primarily to serve economic interests. But finally, in the early Twentieth Century, many of the fundamental rights in the Bill of Rights, including the Establishment Clause, were found to be incorporated into the Fourteenth Amendment. This fulfilled, at least partially, the original intent of its Framers.

Thomas’ argument that the Framers of the Fourteenth Amendment did not intend to incorporate the Establishment Clause is dubious at best, and is contradicted by clear statements of those who framed the Amendment. A review of the legislative history of the Amendment shows significant evidence that the Framers of the Amendment intended it to incorporate all of the protections of rights guaranteed in the first eight Amendments to the Constitution.

The primary drafter of the Fourteenth Amendment, Senator John Bingham, stated his unequivocal intent that the Fourteenth Amendment applied all the rights in first eight Amendments.

In congressional testimony, after quoting all eight Amendments verbatim, he stated,

“These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,' are an express prohibition upon every State of the Union, which may be enforced under existing laws of Congress, and such other laws for their better enforcement as Congress may make."[7]

Congressman Jacob Howard, who was instrumental in passing the Amendment in the House, made similar statements.

There is no legal or logical reason to suppose that these men, whose intent was to protect all fundamental rights in the Bill of Rights, would arbitrarily have excluded only one provision–the right to be free of religious establishment.

Under an originalist analysis, even if you accept Thomas' unsupported presupposition that the Establishment Clause was not originally intended to create an individual right, you still have to show that the Framers of the Fourteenth Amendment had the same belief. This assumption ignores substantial historical evidence.

Whatever the original drafters of the Establishment Clause intended, by the late 1850s, the public understanding had fundamentally shifted. By that time the prevailing view was that the Establishment Clause created an individual right to be free of government regulation of religion. [8]

For example, in a case decided in 1858, the California Supreme Court clearly expressed this legal position,

“When our liberties were acquired, our republican form of government adopted, and our Constitution framed, we deemed that we had attained not only toleration, but religious liberty in its largest sense-a complete separation between Church and State, and a (Perfect equality without distinction between all religious sects.” [9]

In the 1860s many states incorporated the concept of non-establishment into their own state constitutions. By this time, Americans understood the Establishment Clause to mean that "no government could legitimately prefer (prohibit) one religion over another or attempt to suppress (protect) religious exercise on religious grounds….Establishment had come to represent a personal freedom.” [10]

Thomas also assumes, without supporting evidence, that in their numerous uses of terms like "freedom of religion," in describing fundamental rights, the Fourteenth Amendment Congress was referring solely to the Free Exercise Clause, and not to the Establishment Clause as well.

However, one legal commentator who has extensively researched the 1860s view on religion noted that “to the nineteenth-century mind, suppression of religious opinion was the quintessential example of a government-imposed religious establishment. Similarly, in 1871, [John] Bingham first lists the entire First Amendment- including the Establishment Clause-as examples of the privileges or immunities protected under Section One of the Fourteenth Amendment. Only later does he refer to southern restriction of ‘the rights of conscience.’” [11]

He further noted that in their discussions of the Amendment, Congress made little attempt to distinguish between the right to Free Exercise and the right to non-establishment, since they were considered part of the same right. [12]

Thomas’ strained attempt to circumvent the evidence of Congressional intent in framing the Fourteenth Amendment is ironic since Thomas is well-known as a committed originalist. Originalism is a complex and slippery term which has numerous individual interpretations. But in essence, it refers to a legal philosophy which attempts to find the meaning of a legal provision in the original intent of those who drafted it.

Looking at Thomas’ religion opinions as a whole, it is hard to escape the conclusion that his ultimate intent is to increase rights for majority (Christian) religious belief and practice, and correspondingly diminish the competing rights of minority religious groups.

It is impossible to believe that Thomas is so out of touch–so isolated in his legal ivory tower–that he is completely oblivious to the real-world implications of his legal doctrine. He cannot be unaware that the historical record, to which he professes such complete fidelity, demonstrates conclusively that state establishment of religion goes hand in hand with religious discrimination and persecution.

The Implications of Disincorporation

Regardless of Thomas’ intent, the consequences of applying his legal doctrine would be catastrophic for freedom in America.

As one astute legal scholar has pointed out, “If the Establishment Clause were disincorporated, states would be constitutionally empowered to:

  • delegate government power to religious organizations;
  • make theological judgments when parties consent to the state’s jurisdiction;
  • levy taxes dedicated to the support of a particular religion or religion generally;
  • grant financial or in-kind assistance to prayer, worship, and other unambiguously religious activities;
  • endorse or condemn particular religions;
  • underwrite prayer, religious education, and other religious services in public schools…;
  • appropriate religious symbols and practices for its own purposes even when they signify theological meaning or endorse a particular religion. “ (citations omitted)[13]

And this is not even a comprehensive list. State governments would be empowered to meddle with every aspect of life that touches religious faith and practice. It is hard to overstate the devastating effect this could have on all the individual rights of citizens of such states, including inhibiting free speech, free assembly, privacy, even property rights.

A Credible Threat?

The question arises, "Is the terrifying specter of Court-sanctioned state establishment a credible threat?" After all, Thomas is only one Justice out of nine. To answer that question authoritatively would require a constitutional scholar with a concentration in fortune-telling. However, it is safe to conclude that the threat has become exponentially more credible now that the Thomas has become one of a majority of five, rather than merely one of nine.

Whether he can bring the other four into the fold of disincorporation remains to be seen. As yet, there is no specific evidence on the other four Justices' views on this issue.

However, it has been noted that Justice Neil Gorsuch has been, in essence, Thomas' ideological twin–voting with Thomas on almost every case they have decided. [14] Gorsuch's conservative judicial philosophy had also been compared to Scalia's. So there is a good chance that he would be open to Thomas' anti-incorporation arguments.

Justice Samuel Alito has gained the reputation of voting for conservative ideology consistently, even when this contradicts his judicial philosophy.[15] Therefore, it would not be surprising if he also could be persuaded to follow Thomas' lead.

One legal analysis of the religion decisions of Trump's nominee, Brett Kavanaugh, describes a judge who could be characterized as a "kinder, gentler Scalia"–one who gives due legal weight to the "pain" of an “excluded” religious minority before he rules that that pain is not sufficient to outweigh the majority interest in government religious expression. In other words, more empathy, same result. [16]

Chief Justice John Roberts appears to be less committed to a radical conservative agenda than the other four, but he is no less willing to favor religious groups, and weaken the “separation” of the Establishment Clause, as demonstrated by his recent decisions.

A careful look at the expressed positions of all the conservative members of the Court forces the conclusion that they have the same basic objectives–to increase the rights of a select group of Christians to control the religious discourse in this country, and to promote the rights of that group to religious practice at the expense of all others. So in the end, it may not matter whether they get there by the path of Scalia’s non-neutrality or Thomas’ more radical disincorporation. Non-neutrality may be a more circuitous path, and may take a bit longer, but the destination is the same.

History gives us indisputable evidence that this philosophy, carried to its inevitable end result, would return this country to the Seventeenth Century world of religious discrimination, exclusion, and persecution of religious minorities. History, from the Inquisition to the massacre of French Huguenots, to Puritan New England, also demonstrates that state establishment inevitably destroys the right to Free Exercise for all people, even for members of the majority.

It would be wise for Americans at this critical time to heed the warning of the philosopher George Santayana, “Those who cannot remember the past are condemned to repeat it. Studying history is necessary to avoid repeating past mistakes.” Is this the kind of history we want to repeat?

[1] Everson v. Board of Education, 330 U.S 1, 9 (1947)

[2] 8 Johns 290 (N.Y. 1811),

[3] Kurt T. Lash, "The Second Adoption of the Establishment Clause: The Rise of the Non-Establishment Principle" 27 Ariz. L. J. 1085 (1995)

[4] See e.g. McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844, (2005) (Scalia, J., dissenting)

[5] See e.g.., Town of Greece v. Galloway, 134 S.Ct. 1811 (2014) (Thomas, J. dissenting); Elk Grove Unified School Dist. v. Newdow (02-1624) 542 U.S. 1 (2004), (Thomas, J. Concurring);

[6] Frederick Mark Gedicks, Incorporation of The Establishment Clause Against the States: A Logical, Textual, and Historical Account, 88 Indiana L. J. 669 (2013)

[7] CONG. GLOBE, 42d Cong., 1st Sess. app. at 84 (1871).

[8] Lash, supra, at 1113

[9]Ex Parte Newman, 9 Cal. 502, 507 (1858).

[10] Lash, supra, at 1134-35.

[11] Id., at 1144, quoting CONG. GLOBE, 42d Cong., 1st Sess. app. 84 (1864).

[12] Id., at 1144

[13] Gedicks, supra, at 674-75.

[14] http://www.libertylawsite.org/2018/02/20/justice-gorsuch-so-far-originalism-defended/

[15] https://www.theatlantic.com/politics/archive/2016/01/none-to-the-right-of-samuel-alito/431946/

[16] http://www.scotusblog.com/2018/07/judge-kavanaugh-on-law-and-religion-issues/

Sonja DeWitt, Esq. is an attorney specializing in discrimination law. She has handled Equal Employment Opportunity (EEO) cases, both for private sector companies and federal agencies, for over 20 years. She is passionate about religious liberty, and was involved in the North American Religious Liberty Association's political advocacy efforts for several years. During this period, she received the A.T. Jones Award from NARLA for her advocacy work. She has also been published in Liberty Magazine.

Illustration: Congress listens to James Madison present the Bill of Rights.

 

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