May 7, 2014 New York Times - Monday’s 5-4 Supreme Court ruling giving a green light to routine, explicitly Christian prayers at town meetings was extreme — but not as extreme as the concurring opinion from the Court’s resident reactionary, Justice Clarence Thomas.
The ruling, which undermined the separation of church and state, was insufficiently aggressive for Justice Thomas. He agreed with the outcome, but felt the need to reiterate his longstanding view that while the First Amendment’s Establishment Clause “probably” bars Congress from setting up a national religion, it does not apply to states or municipalities.
“As I have explained before,” he wrote, “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.”
In legal terms, Justice Thomas rejects the well-settled view that the Establishment Clause, like other aspects of the Bill of Rights, is “incorporated” under the Fourteenth Amendment to apply beyond actions of the federal government. Not even Justice Antonin Scalia appears to believe that.
Marci Hamilton, a religious scholar at Cardozo Law School, aptly described Justice Thomas’s take on state sponsorship of religion terms “as radically subversive” and “federalism on steroids.”
“Without federal courts enforcing a national line on the separation of church and state, I have no doubt that states like Alabama and Mississippi would eagerly consider establishing Christianity as the state faith,” she said.