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“On His Extremist Island”: Clarence Thomas Would Turn Back The Clock

In yesterday’s Supreme Court ruling on official government prayers at town-council meetings, Justice Anthony Kennedy wrote the 5-4 decision arguing that such practices are permissible under the First Amendment. There was a separate concurring opinion from Justices Samuel Alito and Antonin Scalia, but then Justice Clarence Thomas decided to go further than any of his colleagues.

As Dahlia Lithwick noted, Thomas made the case “that in his view the First Amendment religion clauses don’t apply to the states in the first place.”

Wait, really? Yep, that’s what Thomas actually believes.

…Thomas couldn’t get Scalia’s signature for another part of his dissenting opinion, in which Thomas – not for the first time – disputes the notion that the 1st Amendment’s ban on the “establishment” of religion even applies to state and local governments.

Here’s the deal: the first 16 words of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Nearly a century ago, under something called the incorporation doctrine, courts ruled that most of the Bill of Rights applies to state and local government, too.

In other words, under the literal text of the Constitution, Congress can’t pass laws interfering in religion, abridging the freedom of speech, or undermining a free press, but once the Bill of Rights was applied more broadly, neither can states or municipalities.

Thomas, however, wants to turn back the clock. If policymakers in your state chose today to establish Christianity as the official state religion, Clarence Thomas believes that would be entirely permissible under the First Amendment. So long as Congress didn’t pass the law, he says, it’s kosher.

Even Scalia, hardly a moderate, seems to think that’s nutty, but Thomas just doesn’t care.

As Michael McGough’s report added, “Thomas has argued, the Establishment Clause ‘is best understood as a federalism provision – it protects state establishments from federal interference but does not protect any individual right.’”

This is clearly quite radical, even by contemporary standards, though Thomas isn’t entirely alone on his extremist island – it was just last year when North Carolina Republicans considered legislation that read, “The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.”

That bill ultimately failed, as did Thomas’ effort to find justices who would endorse his perspective, but as conservative politics moves sharply to the right, it’ll be worth watching to see just how many Republican officials end up embracing this argument.

 

By: Steve Benen, The Maddow Blog, May 6, 2014

 

May 7, 2014 Posted by | Constitution, Public Prayer, Separation of Church and State | , , , , , , , | Leave a comment

“Neutral, Generic Blessings?”: Get Prayer Out Of The Churches And Back In The Public Square Where It Belongs!

Maybe it’s something I retained from my early training as a Southern Baptist, way back when members of that denomination, believe it or not, hewed closely to Roger Williams’ doctrine of strict separation of church and state. But every time increasingly conservative courts make fresh accommodations for state-sanctioned religious expressions, as SCOTUS did yesterday in Town of Greece v. Galloway, I have an adverse reaction from a religious point of view.

As Dahlia Lithwick points out at Slate, the majority opinion in the 5-4 decision goes well out of its way to emphasize the banality of prayers at town meetings and other public events:

There will be a good deal of bitterness in the coming days among members of religious minorities and majorities who believe that the Town of Greece decision is just or unjust depending largely on how they feel about sectarian Christian prayers. But stepping back from the specific arguments of the plurality and dissent, it’s fascinating to see how Kennedy and Justice Samuel Alito relentlessly characterize religion as an essentially peaceful, civilizing, lofty influence that seems to have more to do with social politeness than religious zeal. Kennedy’s majority opinion contains the complete text of four prayers, presumably to calm and unify his stressed-out reader, and he writes lovingly of prayer that is “solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing.” He seems unaware that for every solemn and respectful prayer, America offers up dozens of fiery, judgmental, even violent ones.

And yes, Americans also offer up soul-wrenching, spiritually deep, and challenging prayers, too. Cheapening prayer into a “neutral,” generic blessing of secular proceedings offends me as much as sanctioning sectarian expressions because most people in a given community more or less belong to a particular faith, which appears to have been the case in Greece, New York.

Had I been on the Court, I would have probably filed a dissenting opinion urging the reversal of Marsh v. Chambers, the 1983 precedent which basically authorized generic public prayers to a generic God, instead of expanding Marsh to include “non-coercive” sectarian prayers, as the majority did, or drawing the line at prayers so empty as to be deemed non-sectarian, as the dissenters did.

Corporate prayer is meaningless if it does not invoke the beliefs of the community for which it is offered. That is why it belongs in gatherings of believers (and those who for whatever reason–say attendance at a wedding or funeral–are voluntarily participating in a religious event). Yes, throughout the centuries there have been many religious believers who reject the very idea of a “secular” realm, but that is unmistakably alien to American traditions, much as latter-day “constitutional conservatives” try to demonstrate otherwise in their audacious efforts to turn Jefferson into a theocrat.

So let’s don’t assume the only Americans who object to the kind of public prayers sanctioned by Town of Greece–or for that matter, Marsh–are members of religious minorities or unbelievers, justified as they are in the exclusion they feel in public events blessed according to rites they do not accept. Some wag years ago mock-thundered that it was “time to get prayer out of the churches and back in the schools where they belong.” That’s exactly how I react to the the whole “religious expression in the public square” movement. It’s offensive to those who pray as much as to those who don’t.

 

By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, May 6, 2014

May 7, 2014 Posted by | Public Prayer, Separation of Church and State | , , , , , | Leave a comment

   

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