Town of Greece v. Galloway,
572 U.S. ___ (2014)

Annotate this Case



No. 12–696



on writ of certiorari to the united states court of appeals for the second circuit

[May 5, 2014]

     Justice Thomas, with whom Justice Scalia joins asto Part II, concurring in part and concurring in thejudgment.

     Except for Part II–B, I join the opinion of the Court, which faithfully applies Marsh v. Chambers, 463 U. S. 783 (1983) . I write separately to reiterate my view that the Establishment Clause is “best understood as a federalism provision,” Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 50 (2004) (Thomas, J., concurring in judgment), and to state my understanding of the proper “coercion” analysis.


     The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion.” U. S. Const., Amdt. 1. As I have explained before, the text and history of the Clause “resis[t] incorporation” against the States. Newdow, supra, at 45–46; see also Van Orden v. Perry, 545 U. S. 677 –693 (2005) (Thomas, J., concurring); Zelman v. Simmons-Harris, 536 U. S. 639 –680 (2002) (same). If the Establishment Clause is not incorporated, then it has no application here, where only municipal action is at issue.

     As an initial matter, the Clause probably prohibits Congress from establishing a national religion. Cf. D. Drakeman, Church, State, and Original Intent 260–262 (2010). The text of the Clause also suggests that Congress “could not interfere with state establishments, notwithstanding any argument that could be made based on Congress’ power under the Necessary and Proper Clause.” Newdow, supra, at 50 (opinion of Thomas, J.). The language of the First Amendment (“Congress shall make no law”) “precisely tracked and inverted the exact wording” of the Necessary and Proper Clause (“Congress shall have power . . . to make all laws which shall be necessary and proper . . . ”), which was the subject of fierce criticism by Anti-Federalists at the time of ratification. A. Amar, The Bill of Rights 39 (1998) (hereinafter Amar); see also Natelson, The Framing and Adoption of the Necessary and Proper Clause, in The Origins of the Necessary and Proper Clause 84, 94–96 (G. Lawson, G. Miller, R. Natelson,& G. Seidman eds. 2010) (summarizing Anti-Federalist claims that the Necessary and Proper Clause would aggrandize the powers of the Federal Government). That choice of language—“Congress shall make no law”—effectively denied Congress any power to regulate state establishments.

     Construing the Establishment Clause as a federalism provision accords with the variety of church-state arrangements that existed at the Founding. At least six States had established churches in 1789. Amar 32–33. New England States like Massachusetts, Connecticut, and New Hampshire maintained local-rule establishments whereby the majority in each town could select the minister and religious denomination (usually Congregationalism, or “Puritanism”). McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2110 (2003); see also L. Levy, The Establishment Clause: Religion and the First Amendment 29–51 (1994) (hereinafter Levy). In the South, Maryland, South Carolina, and Georgia eliminated their exclusive Anglican establishments following the American Revolution and adopted general establishments, which permitted taxation in support of all Christian churches (or, as in South Carolina, all Protestant churches). See Levy 52–58; Amar 32–33. Virginia, by contrast, had recently abolished its official state establishment and ended direct government funding of clergy after a legislative battle led by James Madison. See T. Buckley, Church and State in Revolutionary Virginia, 1776–1787, pp. 155–164 (1977). Other States—principally Rhode Island, Pennsylvania, and Delaware, which were founded by religious dissenters—had no history of formal establishments at all, although they still maintained religious tests for office. See McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1425–1426, 1430 (1990).

     The import of this history is that the relationship between church and state in the fledgling Republic was far from settled at the time of ratification. See Muñoz, The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 U. Pa. J. Constitutional L. 585, 605 (2006). Although the remaining state establishments were ultimately dismantled—Massachusetts, the last State to disestablish, would do so in 1833, see Levy 42—that outcome was far from assured when the Bill of Rights was ratified in 1791. That lack of consensus suggests that the First Amendment was simply agnostic on the subject of state establishments; the decision to establish or disestablish religion was reserved to the States. Amar 41.

     The Federalist logic of the original Establishment Clause poses a special barrier to its mechanical incorporation against the States through the Fourteenth Amendment. See id., at 33. Unlike the Free Exercise Clause, which “plainly protects individuals against congressional interference with the right to exercise their religion,” the Establishment Clause “does not purport to protect individual rights.” Newdow, 542 U. S., at 50 (opinion of Thomas, J.). Instead, the States are the particular beneficiaries of the Clause. Incorporation therefore gives rise to a paradoxical result: Applying the Clause against the States eliminates their right to establish a religion free from federal interference, thereby “prohibit[ing] exactly what the Establishment Clause protected.” Id., at 51; see Amar 33–34.

     Put differently, the structural reasons that counsel against incorporating the Tenth Amendment also apply to the Establishment Clause. Id., at 34. To my knowledge, no court has ever suggested that the Tenth Amendment, which “reserve[s] to the States” powers not delegated to the Federal Government, could or should be applied against the States. To incorporate that limitation would be to divest the States of all powers not specifically delegated to them, thereby inverting the original import of the Amendment. Incorporating the Establishment Clause has precisely the same effect.

     The most cogent argument in favor of incorporation may be that, by the time of Reconstruction, the framers of the Fourteenth Amendment had come to reinterpret the Establishment Clause (notwithstanding its Federalist origins) as expressing an individual right. On this question, historical evidence from the 1860’s is mixed. Congressmen who catalogued the personal rights protected by the First Amendment commonly referred to speech, press, petition, and assembly, but not to a personal right of nonestablishment; instead, they spoke only of “ ‘free exercise’ ” or “ ‘freedom of conscience.’ ” Amar 253, and 385, n. 91 (collecting sources). There may be reason to think these lists were abbreviated, and silence on the issue is not dispositive. See Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz. St. L. J. 1085, 1141–1145 (1995); but cf. S. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom 50–52 (1995). Given the textual and logical difficulties posed by incorporation, however, there is no warrant for transforming the meaning of the Establishment Clause without a firm historical foundation. See Newdow, supra, at 51 (opinion of Thomas, J.). The burden of persuasion therefore rests with those who claim that the Clause assumed a different meaning upon adoption of the Fourteenth Amendment.[1]


     Even if the Establishment Clause were properly incorporated against the States, the municipal prayers at issue in this case bear no resemblance to the coercive state establishments that existed at the founding. “The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” Lee v. Weisman, 505 U. S. 577, 640 (1992) (Scalia, J., dissent-ing); see also Perry, 545 U. S., at 693–694 (Thomas, J., concurring); Cutter v. Wilkinson, 544 U. S. 709, 729 (2005) (Thomas, J., concurring); Newdow, supra, at 52 (opinion of Thomas, J.). In a typical case, attendance at the established church was mandatory, and taxes were levied to generate church revenue. McConnell, Establishment and Disestablishment, at 2144–2146, 2152–2159. Dissenting ministers were barred from preaching, and political participation was limited to members of the established church. Id., at 2161–2168, 2176–2180.

     This is not to say that the state establishments in existence when the Bill of Rights was ratified were uniform. As previously noted, establishments in the South were typically governed through the state legislature or State Constitution, while establishments in New England were administered at the municipal level. See supra, at 2–3. Notwithstanding these variations, both state and local forms of establishment involved “actual legal coercion,” Newdow, supra, at 52 (opinion of Thomas, J.): They exercised government power in order to exact financial support of the church, compel religious observance, or control religious doctrine.

     None of these founding-era state establishments remained at the time of Reconstruction. But even assuming that the framers of the Fourteenth Amendment reconceived the nature of the Establishment Clause as a constraint on the States, nothing in the history of the intervening period suggests a fundamental transformation in their understanding of what constituted an establishment. At a minimum, there is no support for the proposition that the framers of the Fourteenth Amendment embraced wholly modern notions that the Establishment Clause is violated whenever the “reasonable observer” feels “subtle pressure,” ante, at 18, 19, or perceives governmental “endors[ement],” ante, at 5–6. For example, of the 37 States in existence when the Fourteenth Amendment was rati-fied, 27 State Constitutions “contained an explicit reference to God in their preambles.” Calabresi & Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 Tex. L. Rev. 7, 12, 37 (2008). In addition to the preamble references, 30 State Constitutions contained other references to the divine, using such phrases as “ ‘Almighty God,’ ” “ ‘[O]ur Creator,’ ” and “ ‘Sovereign Ruler of the Universe.’ ” Id., at 37, 38, 39, n. 104. Moreover, the state constitutional provisions that prohibited religious “comp[ulsion]” made clear that the relevant sort of compulsion was legal in nature, of the same type that had characterized founding-era establishments.[2] These provisions strongly suggest that, whatever nonestablishment principles existed in 1868, they included no concern for the finer sensibilities of the “reasonable observer.”

     Thus, to the extent coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts—not the “subtle coercive pressures” allegedly felt by respondents in this case, ante, at 9. The majority properly concludes that “[o]ffense . . . does not equate to coercion,” since “[a]dults often encounter speech they find disagreeable[,] and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum.” Ante, at 21. I would simply add, in light of the foregoing history of the Establishment Clause, that “[p]eer pressure, unpleasant as it may be, is not coercion” either. Newdow, 542 U. S., at 49 (opinion of Thomas, J.).


1  This Court has never squarely addressed these barriers to the incorporation of the Establishment Clause. When the issue was first presented in v. , , the Court casually asserted that “the [has been] interpreted to make the prohibitions of the First applicable to state action abridging religious freedom. There is every reason to give the same application and broad interpretation to the ‘establishment of religion’ clause.” , at 15 (footnote omitted). The cases the Court cited in support of that proposition involved the Free Exercise Clause—which had been incorporated seven years earlier, in v. , —not the Establishment Clause. 330 U. S., at 15, n. 22 (collecting cases). Thus, in the space of a single paragraph and a nonresponsive string citation, the Court glibly effected a sea change in constitutional law. The Court’s inattention to these doctrinal questions might be explained, although not excused, by the rise of popular conceptions about “separation of church and state” as an “American” constitutional right. See generally P. Hamburger, Separation of Church and State 454–463 (2002); see also at 391–454 (discussing the role of nativist sentiment in the campaign for “separation” as an American ideal).
2  See, , Del. Const., Art. I, §1 (1831) (“[N]o man shall, or ought to be compelled to attend any religious worship, to contribute to the erection or support of any place of worship, or to the maintenance of any ministry, against his own free will and consent”); Me. Const., Art. I, §3 (1820) (“[N]o one shall be hurt, molested or restrained in his person, liberty or estate, for worshiping God in the manner and season most agreeable to the dictates of his own conscience”); Mo. Const., Art. I, §10 (1865) (“[N]o person can be compelled to erect, support, or attend any place of worship, or maintain any minister of the Gospel or teacher of religion”); R. I. Const., Art. I, §3 (1842) (“[N]o man shall be compelled to frequent or to support any religious worship, place, or ministry what-ever, except in fulfillment of his own voluntary contract”); Vt. Const., Ch. I, §3 (1777) (“[N]o man ought, or of right can be compelled to attend any religious worship, or erect, or support any place of worship, or maintain any minister, contrary to the dictates of his conscience”).
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