The Supreme Court’s ruling in Greece v Galloway once again revealed just how radical Justice Clarence Thomas is in his jurisprudence. He and Justice Scalia agreed with the result but wrote a concurring opinion arguing that only actual government coercion — punishing someone for not attending church, for instance — is forbidden by the Establishment Clause. But Thomas went even further in a section of the concurrence that even Scalia would not join:
The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion.” As I have explained before, the text and history of the Clause “resis[t] incorporation” against the States. If the Establishment Clause is not incorporated, then it has no application here, where only municipal action is at issue.
As an initial matter, the Clause probably prohibits Congress from establishing a national religion.
The text of the Clause also suggests that Congress “could not interfere with state establishments, notwithstanding any argument that could be made based on Congress’ power under the Necessary and Proper Clause.”
He is quoting his own previous opinion in another case there. His position is that the Establishment Clause only means that the federal government can’t interfere if a state wants to have an official church or religion and that it does not protect any individual right at all. Nor does he think the 14th Amendment applies that clause to the states under the doctrine of incorporation. Think about how dangerous that idea is. Do you think, say, Alabama or South Carolina would hesitate for a moment to declare their states officially Christian if Thomas’ view was in place?This view is so radical that even the other conservative members of the court refuse to join him in that position. He’s dragged Scalia considerably further to the right on many issues in his time on the court (no, contrary to popular opinion among liberals, Thomas is not Scalia’s lapdog; in fact, the opposite is often true), but on that one even Scalia doesn’t agree.
This is one reason why I get so irritated by the often facile criticisms that my fellow liberals aim at Thomas, about whether he asks questions or some such irrelevant nonsense. There are real reasons to criticize Thomas. He’s more radical and more dangerous than most understand and his (often) solo dissents have several times become the majority opinion later down the line. If Thomas’ understanding of the Constitution held sway the majority of the time, we would be well and truly screwed.