Justice Thomas, Town of Greece, and Rewinding the Tape

I've blogged about my take on the Town of Greece prayer case both before and after the decision came down.

Here, though, I just want to look at the first part of Justice Thomas's provocative dissent.  Justice Thomas argues there that the Establishment Clause is "best understood as a federalism provision" denying Congress "any power to regulate state establishments" and, for that reason, should never have been "incorporated" via the Fourteenth Amendment's Due Process Clause to apply against the states it was originally meant to protect.  Thus:  "If the Establishment Clause is not incorporated, it has no application here [in a suit against the Town of Greece], where only municipal action is at issue."  Case closed.

There are good reasons to doubt Justice Thomas's view that the Establishment Clause should never have been incorporated.  But let's assume, just for the sake of argument, that he's right.  Would that really be the end of the story?  No.

Justice Thomas ignores two important, related, points.

First, counterfactuals are incredibly dicey.  Justice Thomas seems to assume that, if he's right that the Establishment Clause should not have been incorporated, then that would in effect, simply block application of the Clause against the States while leaving the rest of our current constitutional doctrine as is.  But that's not the best way to draw out the implications of his position.  The real question is not "what would our constitutional doctrine look like now if we redacted the part about applying the Establishment Clause to the States?" but rather "what would our constitutional doctrine have ended up looking like now if the Court had never incorporated the Establishment Clause in the first place?"  In other words, we would need to roll the tape back to 1947, imagine that the Court in Everson v. Board of Education had decided against incorporation of the Establishment Clause, and then roll the tape forward from that point.  This might smack of writing an alternative history novel or a time travel story, but it really is the only intellectual credible way to go.  (In fact, the tape would probably have to be rolled back way before 1947, to when the Justices at some level at least assumed that the Establishment Clause would end up getting incorporated.)

Second, Justice Thomas ignores the difference between constitutional clauses and constitutional questions.  In fact, as often as not, questions that might plausibly have found a textual peg in one clause end up, for one or another reason, getting tied to a different clause.  A famous (and ironic) example is incorporation itself, which the Court might have channeled through the Privileges and Immunities Clause of the Fourteenth Amendment, except that it cut off that route in Slaughterhouse Cases, so it ended up relying on the Due Process Clause.

So... putting these two ideas together -- the complications of counterfactuals and the permeability of clauses -- there's decent chance that, had the Establishment Clause never been incorporated, very similar anti-establishment doctrines might have ended up finding their home in the Free Exercise Clause or even the Equal Protection Clause or elsewhere.  Of course, that would require a different look and feel to, say, Free Exercise doctrine than the one we actually have, but that's the whole point:  Our current Free Exercise doctrine assumes that a lot of church-state work is being done by the Establishment Clause.  Eliminate that assumption, run the tape forward from a point many decades ago, and the Free Exercise Clause (or other clauses) might have ended up with a different look, feel, and content.

In my next post, I'll explain why this outcome would not only be plausible but very possibly right.

 

Updated to correct typos.

Comments

[Steve Shiffrin]

Excellent post Perry. It strikes me that German law provides some support for your your view. In the German crucifix case, there is no German Establishment Clause, but students cannot be compelled to study "under the cross," nor can witnesses be forced to testify "under the cross." On the other hand, my understanding is that crosses are all over Bavaria.