You may have heard: Town of Greece v. Galloway didn’t go our way. In a 5-4 split, the U.S. Supreme Court found that local governments do have the right to open public meetings with sectarian prayers, albeit with certain restrictions. Justice Anthony Kennedy, writing for the majority, noted that towns can’t exclude non-Christian clergy from delivering prayers, and that prayers can’t proselytize or denigrate non-believers.But in a concurring opinion, Justice Clarence Thomas took things a bit further, writing that the First Amendment “probably prohibits Congress from establishing a national religion.” That word – probably –is weighted here and indicates a general suspicion toward the way the First Amendment is currently interpreted. It also introduces a sweeping defense of the establishment of religion at the state level.“At least six States had established churches in 1789,” he wrote, and later added, “The import of this history is that the relationship between church and state in the fledgling Republic was far from settled at the time of ratification.”That unsettled relationship could arguably be interpreted as democratic growing pains. There are, after all, many rights that Americans currently enjoy that weren’t codified at the time of the Constitution’s ratification; over time, the original text has been amended to abolish slavery, prohibit voting discrimination and grant women’s suffrage.
But Thomas clearly views history through another lens. “That lack of consensus suggests that the First Amendment was simply agnostic on the subject of state establishments; the decision to establish or disestablish religion was reserved to the States,” he wrote.He also pointed to our founding documents and their references to a deity as further evidence that the Constitution’s framers didn’t intend to prevent the total disestablishment of religion.To call that argument a creative interpretation of the First Amendment would be a charitable understatement. It’s a line of thinking to be expected from debunked pseudo-historians like David Barton, not a Supreme Court justice.
Thomas also ignores the reality of the Fourteenth Amendment. Yes, the First Amendment was originally a limitation on Congress. The Fourteenth Amendment, a post-Civil War alteration, changed that. Thomas simply overlooks this history.Fortunately, this proved too extreme for the rest of the high court. For now, it remains illegal for any local government to affiliate itself with a particular system of belief. But there’s some support for the concept. Last year, the North Carolina legislature introduced a resolution that, had it passed, would have declared Christianity the official state religion. That bill was inspired by another lawsuit over sectarian prayers at government meetings.The bill, which Americans United opposed, died, though not before North Carolina became a national laughingstock. However, Thomas’ opinion in Galloway is a troubling reminder that these views, while extreme, aren’t without support.The second section of Thomas’ opinion addressed the subject of coercion. In it, he argued that the First Amendment’s religion clause does not protect individual citizens from “subtle coercive pressures,” as we argued before the court, but rather from more heavy-handed legal coercion. A town could affiliate itself with Christianity but as long as its citizens weren’t subject to legal penalties for refusing to participate in Christian prayers or worship at public meetings, there would be no First Amendment violation.Here, he found an ally in Justice Antonin Scalia, who signed onto this section of Thomas’ opinion (Scalia refrained from endorsing his defense of localized establishments of religion).Their definition of coercion doesn’t leave much protection for religious minorities, and that’s little surprise. Those who argue against a robust wall of separation between church and state tend to ignore the individual rights of religious minorities. It’s certainly true that America, at its founding, was majority Christian, and remains majority Christian now.But that religious landscape is changing swiftly, and even if it weren’t, it's worth remembering this: A government that allows majority beliefs to trump minority rights is no democracy. And it is unquestionably true that a democracy, not a civil religion, is what the Founders intended to establish.Town of Greece v. Galloway is settled. The problem of local government endorsing religion is not. If Thomas’ opinion is anything to go by, there’s still plenty of work to do.