State Religions, Clarence Thomas and the Incorporation Doctrine

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

In the recent Supreme Court case of Town of Greece V. Galloway, the high court attempted to determine "whether the town of Greece, New York, imposes an impermissible establishment of religion by opening its board meetings with a prayer."  Such prayers had been initiated in 1999, before which for a long time meetings had been opened with a moment of silence.  Most of these prayers have been conducted by Christian chaplains and many have been overtly sectarian.  The majority concluded that prayers opening such meetings have been consistently held not to violate the Establishment Clause of the First Amendment and that "[a]bsent a pattern of prayers that over time denigrate, proselytize, or betray and impermissible government purpose, a challenge based solely on the content of the prayer will likely not establish a constitutional violation."  As long as participation is not coerced, the prayers pass constitutional muster. 

Reaction to the decision has been predictable.  Civil libertarians and committed secularists have seen this as the vanguard of a push to establish religion at the local level.  Religious sectarians have not been helpful in this regard, suggesting that the decision enables local governments to exclude minority religious groups from conducting such prayers.  Many, on both sides, are focusing on the concurrence authored by Clarence Thomas, which suggests that the Establishment Clause may not be binding on the states arguing, in essence, that states can establish their own churches.

This is not a new argument.  The Bill of Rights was, of course, an addition to the federal Constitution.  Its proposal was a condition of ratification for states like Massachusetts, New York, and Virginia, without which the new nation would not stand.  Proponents of the Bill of Rights wanted it included because they feared that the strong central government built by the Constitution could too easily trample on the rights of citizens.  It was intended, therefore, as a bulwark against federal authority, not binding on the states.  Indeed, the Constitution binds the states only when it explicitly says it does.  For what other reason would states have found it necessary to include bills of rights in their own constitutions?

In matters of religion, the difference is easy to see.  History shows us that at the time of ratification, six states still had religious establishments of varying types.  Massachusetts' establishment lasted the longest, ending only in 1833.  This occurred, as associate Justice Joseph Story noted in that same year "without the slightest suspicion, that it was against the principles of public law, or republican liberty."  States voluntarily gave up their establishments.  So, while the federal government could not establish a religion, states were apparently free to do so.

What stops them from doing so now?  Primarily the Fourteenth Amendment, adopted in 1868.  It was one of the three so-called "Reconstruction Amendments" adopted in the wake of the Civil War.  The amendment sought to clarify the citizenship status of newly-freed blacks and to make structural changes to the Constitution.  For instance, the Three-Fifths Compromise, which had counted slaves as three-fifths of a person for apportionment purposes, was eliminated.  Rebels who had, while holding office prior to the Civil War, had repudiated their oaths to the United States and sworn allegiance to the Confederacy, were barred from public office.  And the validity of the national debt, which had exploded in the Civil War, was reaffirmed against critics.

Its most important and far-reaching provisions, though, are in the first section:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This section, especially the language referring to abridgement of privileges and immunities, is the origin of what is known as the "Incorporation Doctrine," the name given to the idea that the protections enshrined in the federal Bill of Rights also protect citizens against state governments.  Beginning with the 1925 case of Gitlow v. New York, which argued that the freedom of speech contained in the First Amendment also prevents state governments from passing speech restrictions, most of the rights enumerated in the first eight amendments to the constitution have been similarly interpreted (or incorporated).

On the matter of establishment, Thomas seems to believe that the Establishment Clause of the First Amendment was intended to clear the ground for state establishments of the sort that existed in six of the original thirteen states at the time of ratification.  In his Town of Greece v. Galloway concurrence he argues that the Establishment Clause resists incorporation because it is an overt act of federalism and that the "Federalist logic of the original Establishment Clause poses a special barrier to its mechanical incorporation against the States through the Fourteenth Amendment."  Throughout, he refers to earlier opinions he has offered to the effect that the Establishment Clause doesn't offer individual protection as does the Free Exercise Clause.

Regardless of whether his interpretation of the Establishment Clause as an instance of federalism is correct, we have to contend with this dangerous line of attack.  It relies upon the historical fact of state establishment and upon the common interpretation prior to the early 20^th century that the Bill of Rights did not apply to state governments.  In fact, it shows how fragile the structures protecting individual rights against state governments are.  The Incorporation Doctrine is not a piece of legislation; it is not in the Constitution.  In a real sense, it exists only in the minds of jurists and in court precedent.

Thus it can be swept away, another precedent discarded into the dustbin of history.  What might the consequences be?  I think it will be instructive to use my own home state of North Carolina as an example.  Section 13 of the state constitution says of religious liberty:

“All persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights of conscience.”

Leaving aside for a moment the implicit assumption that everyone in North Carolina will worship “Almighty God” (the language is strangely reminiscent of the 313 Edict of Milan…a topic for another post perhaps) note that there is no analogue to the Establishment Clause.  North Carolina's first constitution, adopted in 1776 and from which the first clause of the current language on religious liberty is drawn word-for-word, provided more protection:

"That there shall be no establishment of any one religious church or denomination in this State, in preference to any other; neither shall any person, on any presence whatsoever, be compelled to attend any place of worship contrary to his own faith or judgment, nor be obliged to pay, for the purchase of any glebe, or the building of any house of worship, or for the maintenance of any minister or ministry, contrary to what he believes right, of has voluntarily and personally engaged to perform; but all persons shall be at liberty to exercise their own mode of worship"

Of course, this anti-establishment sentiment is tempered with language declaring that 

"[N]o person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State."

This restriction lives on in the language from both the 1878 and current constitutions barring from office "
any person who shall deny the being of Almighty God," language apparently vitiated by the Supreme Court in the 1961 Torcaso v. Watkins ruling.  Hugo Black's majority opinion leaned heavily on the 1947 Everson v. Board of Education ruling which incorporated the Establishment Clause in the first place.  Such language still appears in eight state constitutions but is, presumably, null and void.

This could change if Justice Thomas' interpretation of the Establishment Clause prevailed, and the door, not only to state establishments, but also to religious restrictions on office holders, flung open.  Indeed, in last year’s session of the General Assembly, a bill was proposed that would have allowed the state to establish a religion, arguing that the Bill of Rights did not prevent states from doing so.  

It is for this reason that we have to take Thomas’ argument seriously.  There is a historical precedent, in the United States, for state-established religions.  There are people who want to return to that.  And the mechanisms that prevent it are in the hands of some who seem to agree.