Did Two Supreme Court Justices Just Suggest States Can Establish Their Own Official Religions?

Look, we’re not lawyers, so perhaps we’re making too big a leap here…?

Justice Clarence Thomas at a public appearance about a year ago

But one opinion in particular today jumped out at us, because it really seems like a doozy.

It’s part of a 5-4 ruling that tax breaks given by the state of Montana to people funding scholarships to private schools could, and maybe even have to, apply to religious schools too.

Chief Justice John Roberts wrote the majority opinion, which we’ll get back to before our work is done today.

But what we’re mostly focused on is a concurring opinion by Justice Clarence Thomas and joined by Justice Neil Gorsuch. (Which starts at p. 26 if you’re following along.)

Justice Thomas states:

The [Establishment] Clause [of the Constitution] served only to “protec[t] States, and by extension their citizens, from the imposition of an established religion by the Federal Government.” (His emphasis.)


The modern view, which presumes that States must remain both completely separate from and virtually silent on matters of religion to comply with the Establishment Clause, is fundamentally incorrect. Properly understood,the Establishment Clause does not prohibit States from favoring religion. They can legislate as they wish, subject only to the limitations in the State and Federal Constitutions.” (Our emphasis.)

So it’d be OK for states to pass legislation favoring a certain religion, in effect making it the official religion of that state? (We don’t know, that’s why we’re asking).

Thomas concludes in a way that seems to us even more ominous:

The Free Exercise Clause, although enshrined explicitly in the Constitution, rests on the lowest rung of the Court’s ladder of rights, and precariously so at that. Returning the Establishment Clause to its proper scope will not completely rectify the Court’s dispar-ate treatment of constitutional rights, but it will go a long way toward allowing free exercise of religion to flourish as the Framers intended. I look forward to the day when the Court takes up this task in earnest.”

Just to clarify: the Establishment Clause and the Free Exercise Clause are both parts of the First Amendment of the Constitution, and they come one right after the other.

Here they are in their entirety:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”

That’s it. That’s both. It’s that simple.

Or as Justice Breyer more completely explains:

The First Amendment’s Free Exercise Clause guarantees the right to practice one’s religion. At the same time, its Establishment Clause forbids government support for religion. Taken together, the Religion Clauses have helped our Nation avoid religiously based discord while securing liberty for those of all faiths. This Court has long recognized that an overly rigid application of the Clauses could bring their mandates into conflict and defeat their basic purpose.”

So how does that lead to the path that Justice Thomas asserts results in the:

Repeated denigration of those who continue to adhere to traditional moral standards?

One further note: in making this specific contention, Thomas points immediately and directly to the famous “Masterpiece Cakeshop” decision, in which a Colorado baker refused to make a wedding cake for a same-sex couple. Interesting he cites that particular case as evidence of deficiency in “free exercise”, since the cake shop owner prevailed in a 7-2 ruling.

Meanwhile, going back to the main opinion in the ruling by Justice Roberts: he writes:

The question for this Court is whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana’s no-aid provision to bar religious schools from the scholarship program.”

And he refers to a “‘play in the joints’ between what the Establishment Clause permits and the Free Exercise Clause compels.”


We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.”

Chief Justice Roberts then goes on to make a finessed argument, largely aimed at making a distinction (in our reading) between a school that may “have a religious nature” as differentiated with a school that may exist for an “essentially religious endeavor”. Concluding that while a state has no inherent commitment to help fund private education, once it does, it cannot “disqualify some private schools solely because they are religious.”

Fair enough. Maybe. And while he bases his opinion on some relatively recent court decisions, he also digs back into the 1940s in finding precedent.

And then there’s also Justice Alito’s separate concurring option, which goes back even further than that. Focusing on a failed 1876 amendment. From which he launches into a lengthy dissertation about a history of discrimination against certain religions or sects, especially Catholicism. (He even includes a discriminatory cartoon.) And that remnants of that discrimination continue to exist in many state laws, even more than a century later. So decisions being handed down today must be viewed through the lens of that distant ignoble past.

We’re not going to opine on whether that’s valid or not. Merely observe that argument from Justice Alito struck us as odd given that he was among those Justices who gutted the Voting Rights Act 7 years ago, on the reasoning that it’s unfair to continue to view the systemic discrimination and racism in certain states half a century ago through the lens of today.

So at least part of the court–and a very vocal part–now seems to be saying it sees an active, continuing attack in this country on religion, (which in Justice Thomas’ opinion at least needs to be fiercely and even more aggressively remedied), but not on voting rights?

Guess the way one sees things depends on where one sits.