Supremely Scary: Justice Thomas’ Approach To Church-State Relations Is Truly Frightening

Supreme Court Justice Clarence Thomas believes that the 50 states are free to 'establish' any religion they want.

It’s Halloween, so be prepared to see some scary things today. I’m expecting a full complement of neighborhood ghosts and goblins at the house tonight for trick or treat, but they can’t faze me. I’ve already had my scare for the day. It came in the form of a 19-page rant by Supreme Court Justice Clarence Thomas.

The high court, you see, has been trying to decide what to do with a case out of Utah dealing with crosses that were displayed along highways as memorials to members of the highway patrol who died in the line of duty.

A federal appeals court ruled that the 12-foot by 6-foot crosses must go, since they are on state land. Furthermore, they are crosses. The cross is the central symbol of the Christian faith. It does not memorialize non-Christians.

The 10th U.S. Circuit Court of Appeals, ruling in August 2010 in a case brought by American Atheists, said that the sectarian displays violate church-state separation. The three-judge panel noted that observers were likely to see the large symbols, put up by the Utah Highway Patrol Association with the approval of state officials, as government preference for Christianity.

“Here, we conclude that the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity,” the court said. “The memorials use the preeminent symbol of Christianity, and they do so standing alone (as opposed to it being part of some sort of display involving other symbols). That cross conspicuously bears the imprimatur of a state entity, the [Utah Highway Patrol], and is found primarily on public land.”

The Becket Fund for Religious Liberty, a conservative Catholic-oriented legal group, appealed to the Supreme Court. A host of Religious Right legal groups joined the fray, and they bombarded the high court with petitions imploring the justices to take the case.

The Alliance Defense Fund went so far as to argue that the cross, which, I repeat, is universally recognized as the unifying symbol of Christianity, in this case is really used to “convey the nonreligious messages of individualized commemoration and roadway safety.”

Amazing, isn’t it? Religious Right groups are so eager to get crosses on public land that they are willing to argue that the symbol isn’t religious!

At Americans United, we were worried that some members of the Supreme Court might find this argument appealing. We’ve closely watched the case, Utah Highway Patrol Association v. American Atheists, and our Legal Department filed a friend-of-the-court brief.

But this morning the court said it won’t hear another appeal of the case, effectively putting an end to the matter.

Justice Thomas was not pleased. In his dissent, he attacks the Supreme Court’s rulings in the area of religious symbols displays, saying this entire body of law has spawned confusion in lower courts. In fact, Thomas goes on to attack all of the high court’s rulings in the area of the Establishment Clause – that part of the First Amendment that says “Congress shall make no law respecting an establishment of religion.” According to Thomas, the court’s decisions in this area “have gone hopelessly awry.”

Perhaps most shockingly, Thomas once again states his view that the First Amendment’s religious liberty provisions apply only to the federal government. In his view, the 50 states are free to “establish” any religion they want. In Thomas’ world, the Fourteenth Amendment to the Constitution was apparently never ratified.

There is so much wrong with Thomas’ assertions that it would take a much longer article to respond in full. I’ll summarize them like this: Thomas’ view of the U.S. Constitution is mired in the middle of the 19th century, and his views on church-state relations, I fear, come from the 13th.

Thankfully, Thomas was unable to muster any support for his wall-wrecking scheme. (He appears to have gone too far even for his often-partner, Justice Antonin Scalia.) The court won’t be using this case to overturn decades of church-state law. We can breathe a sigh of relief over that.

But let’s remain diligent. There will be other cases, and there will be more opportunities for the Religious Right to persuade the Supreme Court to lower the church-state wall. Thomas was rebuffed today. Who can say about tomorrow?

The theocrats among us have certain goals: They want their symbols erected in public places. They want their version of Christianity taught in schools. They want their religion to be favored by the government. They want public policy to be based on their narrow reading of the Bible. (And, by the way, they want you to pay for it.)

To me, that agenda is scarier than any vampire, wolfman, ghoul or zombie.