Marci Hamilton on the Incorporation of the Establishment Clause

Marci Hamilton has an interesting column on Findlaw about whether the Establishment Clause is incorporated by the 14th amendment, which means whether it now applies to the states or not. The Supreme Court has long held that it does, but at least one justice, Clarence Thomas, argues that it does not. In his opinion in the Newdow pledge of allegiance case, Thomas argued that rather than denying Newdow's standing to bring the suit, the court should have granted him standing and ruled against him, and in the process overturned a number of precedents based upon the incorporation of the Establishment clause. Thomas wrote:

Because I agree with The Chief Justice that respondent Newdow has standing, I would take this opportunity to begin the process of rethinking the Establishment Clause. I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation. Moreover, as I will explain, the Pledge policy is not implicated by any sensible incorporation of the Establishment Clause, which would probably cover little more than the Free Exercise Clause.

The state of Virginia, in a case involving the Religious Land Use and Institutionalized Persons Act (RLUIPA), has filed a brief taking up Thomas' position and using it to argue that the Establishment Clause should not restrain state governments at all. I'm not sure whether Hamilton describes Thomas' views accurately or not, but perhaps the incongruity lies in Thomas' expressed opinions rather than in her portrayal of them. I haven't taken the time to research it to find out. She says:

Justice Thomas concedes that some basic Establishment Clause principles - but only three of them - do apply against the states. The first is that the state cannot literally coerce religious entities, and by coercion, he means put people in jail for failing to believe what the realm demands. The second is that it cannot invest a religious entity with governing authority. The third is that government may not enact preferences for any one faith, privileging it above the others to, for example, create an official state religion.

But this seems to me to be a different issue than whether the Establishment Clause applies to the states or not, this is primarily about interpretation of the Establishment Clause and how broadly Thomas wants to apply it to any level of government. If Thomas believes that the proper way to interpret that clause is to apply a coercion test, then I'm sure he would apply the same standard of interpretation to the federal government as well as the states (and clearly Thomas favors a much more limited reading than the Lemon test). And clearly Thomas prefers a very narrow application of the coercion test as well, as he argues that the implicit coercion that is inevitable in the saying of the pledge of allegiance is not enough to trigger an establishment clause violation in the absence of official, legally coerced participation (under court precedent, no student can be punished for not participating in the pledge of allegiance, but what child wants to risk the ostracizing that they would get if they refused?). For Thomas, there is no coercion unless backed up by the threat of legally imposed penalty.

Thomas' argument goes a bit further as well. He argues that the Establishment Clause does not protect individual rights, whereas the Free Exercise Clause does, and that the Establishment Clause is best understood as a federalism provision - a prohibition on the Federal government that it may not interfere with state religious establishments. Doug Laycock, one of the foremost legal scholars on church/state issues, reacted strongly to Thomas' opinion in Newdow on the religion law listserv:

I do not doubt that one meaning of the Clause in 1791 was that the federal government could not interfere with establishments in the states. But I am equally sure that one meaning of the Clause in 1791 was that the federal government could take no steps toward a federal establishment of religion -- not in the states, and not in the federal district either. Either a federal establishment or a federal interference with a state establishment would be a law respecting an establishment.

The debate in the First Congress did not focus on the federalism implications. It focused on the meaning of establishment, and on how far the federal government should be restricted. The argument for prohibiting only preferential aid to favored denominations was rejected; the most broadly worded draft proposed was adopted. This of course goes to the debate over nonpreferentialism; but even before that, it goes to whether this Clause was only about federalism, or also about the proper relationship between religion and government. The debate was plainly about the latter; I think the federalism-only interpretation is demonstrably wrong.

I'm not sure the federalism principle that can be derived from the verb "respecting" and the existence of state establishments is much different from the federalism principle that is implicit in the constitutional structure about other individual rights good only against the federal government. Certainly the federal government in 1791 had no general power to protect individual liberties against state restrictions on free speech (blasphemy, defamation, perhaps others) or free exercise (voting confined to Christians, or to Protestants; the Lousiana law on Catholic funerals that got to the Supreme Court in 1845 and produced a repeat of Barron v. Baltimore); or any other individual right. Any attempt to incorporate implicit and explicit rules that the federal government could not interfere with state restrictions on liberty would indeed lead to nonsense.

What is incorporated is the protection for individual liberty in each constitutional right. The states cannot do to citizens what the feds could not do to citizens. The restrictions on government sponsorship of religion play an essential role in protecting the religious liberty of individuals; I am entirely comfortable concluding that those restrictions are a privilege or immunity of citizens of the United States, just like the restrictions on government interference with free speech or free exercise. I understand the argument that the Establishment Clause doesn't speak to what government can do to individuals in the same way as the other provisions of the Bill of Rights, but I think that badly underestimates the role of the Establishment Clause in protecting individual liberty.

The debate, as in most church/state issues, really comes down to which of the founding fathers we want to take seriously on this question. There was wide disagreement over the meaning of the first amendment religion clauses and how they should be interpreted among the founders. The courts have, for most of the last century, moved more and more toward Madison's position of strict separation and away from the more accomodationist or even theocratic views of some of the other founders. It's a great example of why an exclusive focus on "original intent" is scarcely more objective than a pure legal realist position, because even in searching for the original intent one must choose between competing views.