by Matt Barr

Disrespecting an establishment of religion

Prof. Marci Hamilton writes in FindLaw's Writ today about an amicus brief filed by the Commonwealth of Virginia in Cutter v. Wilkinson, currently before the Supreme Court. She's not a fan.

[The case] raises the issue of the constitutionality of the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). Directly at issue is that part of RLUIPA that relates to "institutionalized persons" - in other words, prisoners....

According to Virginia, the states should have broad latitude to institute religious programming in the state prisons, without federal government intervention like RLUIPA. This latitude exists, Virginia claims, because, in its view, the Establishment Clause does not wholly apply to the states. (Virginia also includes in its brief some meritorious federalism-based, congressional power arguments, but these are beyond the scope of this column.)

While the federal government must wholly separate church and state, in other words, Virginia's argument is that the states are not under the same obligation. The states, Virginia says, can connect church and state as closely as they desire - preaching in the prisons, for instance, if they so choose.

Leaving aside for now whether we're willing to stipulate that "the federal government must wholly separate church and state," whichever of several possible meanings that might have, Prof. Hamilton identifies the source of the Commonwealth's "idiosyncratic" argument as Mr. Justice Thomas' dissent in the recent Pledge of Allegiance case (the plaintiff in that case would probably like for us to give his name).

Unsurprisingly, Justice Thomas's view that the States need not comply fully with the Establishment Clause has been embraced by the States themselves. So unless the Court roundly rejects Virginia's claim in its opinion in Cutter, we can expect other states to present the same poppycock in the future, as well.

"Poppycock?"

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 these principles do not exhaust the reach of the Establishment Clause; far from it. For instance, under Justice Thomas's view, states may compel recitation of the Pledge of Allegiance, despite its "under God" language, because that does not violate any of the three principles.

(While the third principle might seem to be violated, Justice Thomas's view is apparently that endorsing monotheism, and forcing recitation of one's loyalty to it, is not the same as endorsing, say, Catholicism, and forcing recitation of one's loyalty to that religion in particular. It is a distinction without a difference.)

Mr. Justice Thomas's view isn't inscrutable, if one read his dissent carefully. "The traditional 'establishments of religion' to which the Establishment Clause is addressed necessarily involve actual legal coercion.... To be sure, I find much to commend the view that the Establishment Clause 'bar[s] governmental preferences for particular religious faiths.' [citation omitted] But the position I suggest today is consistent with this. Legal compulsion is an inherent component of 'preferences' in this context.... The Pledge policy does not expose anyone to the legal coercion associated with an established religion."

If Prof. Hamilton's argument is sound, it should stand up without blurring, deliberately or otherwise, Mr. Justice Thomas' argument about the Pledge. "Peer pressure" did not rise to the level of "legal coercion," and there's quite a bit of space between that and the made-up argument that "endorsing monotheism" squares with the Establishment Clause. Prof. Hamilton again:

The Establishment Clause encompasses much more than these three principles. Importantly, it was intended not just to stop the government from taking over religion, but also to stop religion from taking over the government. Both sides of the two-sided Establishment Clause sword need to be kept sharp, even today.

Fair enough. But again, Thomas' argument is unnecessarily derided, which makes you wonder if Prof. Hamilton's argument could have been made without doing so. Mr. Justice Thomas wanted to use the Pledge case to "begin the process of rethinking the Establishment Clause." More broadly, surely such a "rethinking" would result in Prof. Hamilton's favored view of it succeeding, if Thomas' position is "poppycock?" If so, why so vigorously deride Thomas', and Virginia's, argument?

We're not talking about some schmoe blogger or commentator (although "commentators," if they constitute a majority, carry what I would humbly consider undue weight to Prof. Hamilton: "[T]he Supreme Court for decades and the overwhelming majority commentators have concluded that the Fourteenth Amendment wholly 'incorporated' this provision." She's right, but I hope we haven't totally given in to the idea that an "overwhelming majority of commentators," as opposed to elected lawmakers or duly appointed judges, has any say whatsoever in what the law of the land is), we're talking about an Associate Justice of the Supreme Court and one of the oldest states in the union. The professor is under no obligation to accord their arguments due respect, but failure to do so does necessarily make you wonder if her argument could withstand careful consideration of them.

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