clip 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.
clip 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.