No “Wall of Separation”

A number of years ago I gave a visiting lecture at a large state university. At the faculty dinner afterward, my hosts asked who I thought was the most thoughtful and intellectually interesting Supreme Court justice. They probably expected me to answer “Justice Scalia,” which would have been defensible and acceptable among the dozen or so professors present, all of whom were on the political left.

“That’s easy,” I said, “Justice Thomas.” 

They were stupefied. “You have got to be kidding,” remarked a senior philosophy professor. “He doesn’t even speak at oral arguments.” “He just votes how Scalia tells him,” another professor proclaimed. The remarks were as outrageous as they were ignorant. “When Thomas retires,” I said, “he will be known as the justice most faithful to the Constitution, he will have transformed originalism, and when he dies will be a great American hero.” My dinner companions’ good opinion of me instantly evaporated.

I recalled that conversation after reading the opinions in Espinoza v. Montana, the religious freedom decision handed down last week by the Supreme Court. The Court held, 5-4, that the state of Montana violated the First Amendment’s Free Exercise Clause when it excluded religious individuals from participating in a tax-exempt scholarship program. As explained by my Notre Dame colleague Richard Garnett, the decision continues the movement by the Rehnquist and Roberts Courts to “steadily steer the relevant [church-state] doctrines in the direction of neutrality and even-handedness, reminding citizens and litigants alike that cooperation with religious institutions does not constitute an unlawful ‘establishment’ of religious authority.”

As he is wont to do, the Chief Justice carefully crafted his Espinoza opinion to fit within existing precedents, deciding the case on relatively narrow grounds. While the case might have significant implications for government financial support for religious schools, the Chief Justice didn’t attempt to write a significant opinion. 

That doesn’t seem to have sat well with Justice Thomas. In a concurring opinion joined by Justice Gorsuch, Thomas set forth a bolder approach to the First Amendment’s protection of religious freedom grounded in the original meaning of the text. 

What Thomas understands—and what the Chief Justice seems to ignore—is that the Court’s protection of religious freedom under the Free Exercise Clause necessarily will be constrained by competing and contrary precedents already in place under the Establishment Clause. “Until we correct course on that [Establishment Clause] interpretation,” Thomas wrote, “individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom.”  

The obstacles are “needless” because they are not grounded in the First Amendment’s original meaning. In Everson v. Board of Education (1947), the Court invented the rule that the Establishment Clause creates a “wall of separation” between church and state and, therefore, that government cannot aid religion or prefer religion over non-religion. The decision has never been overturned. In fact, it has been cemented by landmark decisions, including Lemon v. Kurtzman (1971), and reinforced by constructions such as Justice O’Connor’s “endorsement” test. Conservative jurists have long recognized that separationist jurisprudence is built upon “a mistaken understanding of constitutional history,” as Justice Rehnquist gently put it in Wallace v. Jaffree (1985). 

Among the Supreme Court’s current originalists, Thomas is the lead advocate for adopting the actual original meaning of the text. In a series of opinions dating back nearly twenty years, Thomas has argued that the Establishment Clause was designed to reinforce federalism in church-state matters. According to him, “the Clause served only to protect States, and by extension their citizens, from the imposition of an established religion by the Federal Government.” Under Thomas’s reading of the text, the Clause bars only the federal government from establishing a religion; states are free to aid religion (or not), subject only to limitations in their own constitutions and those provisions of the federal Constitution that logically can be incorporated and applied against the states. 

All scholars recognize that the Establishment Clause originally only limited the federal government. Many contend, however, that the Fourteenth Amendment created a constitutional right for individuals to live free of a governmental establishment of religion. Thomas is skeptical that the text of the Fourteenth Amendment, which prevents state governments from abridging the “privileges or immunities of citizens of the United States” or depriving any person of liberty without “due process of law,” generated such a right. But even if it does and it “incorporates” the Establishment Clause to apply against the states, he says that judges are still required to apply the original meaning of what constituted an establishment of religion. This, according to Thomas, means the “coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” 

To put the matter another way, even if the reach of the Establishment Clause has been altered by the Fourteenth Amendment, the Court is not justified in rewriting its substantive meaning. But that is exactly what the Supreme Court did when it claimed that the Establishment Clause establishes a “wall of separation” between church and state, and that government cannot aid religion. 

These historically unjustified precedents encourage and sometimes mandate government discrimination against religion, which is why Thomas says that they must be overturned if the Court is to fully vindicate religious freedom. It is on this point that Thomas’s commitment to originalism takes him down a jurisprudential path different from that of Roberts. 

Roberts is devoted to the institution of the Supreme Court and its precedents. Operating within the Court’s existing precedents is how he believes the Court upholds the rule of law. There is much to be said for this position, but when Court precedents manifestly depart from the Constitution’s meaning, to stubbornly uphold precedent actually subverts the Constitution to the Court. Of the originalists on today’s Court, Justice Thomas sees this most clearly and is most willing to strike down precedents that do not reflect the Constitution’s actual text. In doing so, he remains the justice most faithful to the Constitution and deserves to be recognized as such. 

Vincent Phillip Muñoz is Tocqueville Associate Professor of Political Science and a Concurrent Associate Professor of Law at the University of Notre Dame.

First Things depends on its subscribers and supporters. Join the conversation and make a contribution today.

Click here to make a donation.

Click here to subscribe to First Things.