Private: In Clarence Thomas' America, Theocracy is an Acceptable Form of State Government

by Joel Zuercher, Blog Editor
Michael Newdow's daughter went to a school where she was required to recite the Pledge of Allegiance daily. Newdow, an atheist, sued claiming that the recitation of the Pledge, containing the words "under God," constituted religious indoctrination of his child in violation of the Establishment and Free Exercise clauses, which state in relevant part that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise of." In Elk Grove Unified School District v. Newdow, in an opinion written by Justice Stevens and joined by Justices Kennedy, Souter, Ginsburg and Breyer, the Supreme Court rejected Newdow's claim on narrow procedural grounds, finding that as the non-custodial parent he had no standing to bring such a claim under California law.

If the majority had taken on the Pledge question directly, the most applicable precedent would have been Lee v Weisman. In Lee, the court held that invocations and benedictions could not, under the Establishment Clause and incorporated through the Fourteenth Amendment, be given at public secondary school graduation ceremonies. The Court in Lee, noting that students were not compelled to pray or even to attend the graduation service, found that the constutional question was not one of compulsion but one of coercion. The Court specifically held that "a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it." Lee v. Weisman, 505 U.S. 577, 593 (1992). Thus the prayer is reasonably viewed as a form of state coercion, with an individual able to form, "a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow." Lee, 505 U.S. at 593.
Chief Justice Rehnquist, Justice O'Connor and Justice Thomas each wrote a separate concurring opinion in Newdow (Justice Scalia had recused himself from the case), each doing what the majority would not and examining the Pledge question under the Establishment clause. Both Rehnquist and O'Connor found "under God" in the Pledge of Allegiance to be Constitutional, and they did this by distinguishing Newdow from Lee. Rehnquist basically found that the presence of the words "under God" in the Pledge does not "convert its recital into a 'religious exercise' of the sort described in Lee." O'Connor decided along similar lines, finding that 'under God' constituted not a religious message, but a kind of "ceremonial deism" similar to the impact of "In God we Trust" on American currency. Tellingly, neither Rehnquist or O'Connor questioned the applicability of Lee as precedent.
Early in his concurrence Justice Thomas left no doubt as to where he stood. Thomas began by concluding that strictly, "as a matter of precedent, the Pledge policy is unconstitutional." But Thomas quickly qualified that by adding his belief that "Lee was wrongly decided." Not limiting his decision merely to advocating the reversal of Lee, Thomas took the opportunity to re-examine a century of the Supreme Court's Establishment Clause jurisprudence. Thomas advocated the position that the Estalishment Clause is strictly a federalism provision intended solely to prevent Congress from meddling with state establishments. In short, Thomas views the sole purpose of the Establishment Clause as keeping the Federal government from establishing a national religion. And, because the Establishment Clause does not protect any individual right, there is no way it can be incorporated to the states through the Fourteenth Amendment.
The impact of this position is fairly striking. Thomas sees no problem with a state government establishing a state religion, he even cites the fact that "at the founding, at least six states had established religion." A state theocracy, then, is seemingly no problem to Justice Thomas, as he points out that an incorporated Establishment Clause prohibits state practices pertaining to "an establishment of religion," which he opines, is exactly what the Establishment Clause was designed to protect. Thomas finally admits that there may be some issues in a state theocratic government that may raise some Constitutional questions, they include "coercion of religious orthodoxy and of financial support by force of law and that of penalty." But Thomas offers no firm opinion on the scope of permissible state theocracy, merely stating that assuming his interpretation of the Constitution was accepted, that he "would welcome the opportunity to consider more fully the difficult questions whether and how the Establishment Clause applies against the states."