The Federalist Blog

Justice Thomas pointed out what many should already know from his lone dissent from the court’s denial of certiorari in Utah Highway Patrol Association v. American Atheists Inc. on Monday: Federal Establishment clause jurisprudence is “in Shambles.” The court’s refusal to hear the case brings to an end a lawsuit that has been contested since 2005, leaving Establishment Clause jurisprudence muddy as ever:

Today the Court rejects an opportunity to provide clarity to Establishment Clause jurisprudence in shambles. A sharply divided Court of Appeals for the Tenth Circuit has declared unconstitutional a private association’s efforts to memorialize slain police officers with white roadside crosses, holding that the crosses convey to a reasonable observer that the State of Utah is endorsing Christianity.

Thomas mocks the court over how the Lemon/endorsement test has been selectively applied to cases over the years leaving the question of “constitutionality of displays of religious imagery on government property anyone’s guess.” He draws attention to the majority ditching the Lemon/endorsement test in upholding a Ten Commandments monument located on the grounds of a state capitol in Van Orden, 545 U. S. 677. On the same day Van Orden was announced, the court decides to apply the Lemon/endorsement test in McCreary County v. American Civil Liberties Union of Ky. to find a display of the Ten Commandments in a courthouse unconstitutional.

Thomas says the Court “should be deeply troubled by what its Establishment Clause jurisprudence has wrought.” He reminds Scalia of his own dislike of the Lemon test in his concurring opinion in the 1993 case of Lamb’s Chapel v. Center Moriches Union Free School District:

As to the Court’s invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weisman, 505 U.S. ___ (1992), conspicuously avoided using the supposed “test,” but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so.

Thomas reminds the court it is “actual legal coercion” that the Establishment Clause addresses and not religious acknowledgment. Ignoring this important distinction is the chief reason for the erroneous outcomes under the Lemon test where the court mistakes the word “establishment” for the word “endorsement.”

From the earliest times in this country’s history “establishment” meant church of a certain religious sect established by law. In the northern colonies, citizenship required being a member of the church established by law, e.g., the established Church of Massachusetts. In the south, the Church of England was the established church by law, e.g., Virginia.

An established church by law could infringe the “free exercise” of the people to worship other religious tenets if worship in an established church were coercive by law. Hence, why the federal First Amendment lumps both establishment and free exercise together. The disestablishment the First Amendment Establishment and Free Exercise Clauses erect is the “wall” between Church & State Thomas Jefferson was referring to in his famous Danbury Baptist letter.

It should be apparent why such things as religious symbols, ministerial exceptions, and legislature or school prayers have nothing remotely in common with the Establishment Clause and why the words “Congress shall make no law” precede it. The only question in any Establishment case is whether Congress has established a church by law.

The above reasons makes the Establishment Clause a bad candidate for current theory of substantive due process incorporation since there are no “history, legal traditions, and practices” of the Establishment Clause being anything other than a barrier against government establishment. For purposes of the substantive due process, it would have to be shown through the nations “history, legal traditions, and practices” that it was a fundamental right of individuals to be free from government recognition of Christianity or free from having to observe individuals or governments acknowledging Christianity on public property.

Moreover, Christianity is the only religion deeply rooted in America’s “history, legal traditions, and practices,” making it difficult to assert it is somehow improper for the peoples governments to show a preference to Christianity. The fact is Christianity was the only religion recognized in American law since the first settlements. The Fourteenth Amendments author said in 1869 that is was a duty of all State legislatures to recognize Christianity in their laws.

Justice Thomas correctly points out the “Establishment Clause restrains only the Federal Government” because the words “Congress shall make no law” were never redacted through the adoption of the Fourteenth Amendment. Additionally, nothing in the Fourteenth Amendments text empowers the court to assume otherwise. If the framers thought due process was “substantive” there would never had been any purpose beginning in 1871 to amend the federal constitution to make religion in one form or another a limitation against the States.

The fact it was attempted at least seven times post Fourteenth Amendment, including the 1876 attempt to make the First Amendments Establishment and Free Exercise Clauses binding against the States through the Blaine Amendment, proves due process was not viewed as being applicable outside of the administration of justice for crime.

Some might argue the Blaine Amendment would not have been required if it was not for the Slaughterhouse cases in 1873. Two fatal problems with this argument, 1) the Blaine Amendment was due from a recommendation from President Grant that had no connection to the Slaughterhouse ruling, and 2), the Fourteenth Amendments author, Rep. John A. Bingham, and entire House confirms in an 1871 House Report that the Slaughterhouse court was in fact correct with their citizenship and privileges or immunities holding. Arguing the Slaughterhouse court somehow got it all “wrong” is futile.

The unpleasant truth behind the courts “incorporation” theory is there is no incorporation other than what bill of rights the Fourteenth Amendment says it incorporated; due process of law and Article IV’s privileges and immunities, which Bingham called a “bill of rights” for citizens of the United States “in, not of” a State.

Finally, the chief reason Establishment Clause jurisprudence is “in Shambles” is due to the judicial fraud of “incorporation.” Only when this fraud is cleaned up will constitutional harmony of religion be restored where the federal Constitution leaves it.

Related: Misunderstanding Jefferson’s ‘wall of separation’ metaphor

Related: Supreme Ignorance: ACLU’s Empty Establishment Claims