Does the Fourteenth Amendment Incorporate the Establishment Clause? And If Not, Why Does It Incorporate the Second Amendment?: Town of Greece Part 2

by Michael Dorf

As promised yesterday, this is my second post on last week's SCOTUS ruling in Town of Greece v. Galloway. Here I'll focus on the concurrence by Justice Thomas (which Justice Scalia joined in part, but not in the part on which I want to focus). In addition to joining Justice Kennedy's majority opinion, Justice Thomas offers an alternative ground for the holding: In his view, the Establishment Clause is a federalism provision, rather than a protection for an individual right, and thus it is not incorporated against the states (and their subdivisions, like towns) via the Fourteenth Amendment. He repeats the core of an argument that he articulated at greater length in a concurrence in Elk Grove Unified School Dist. v. Newdow (the pledge of allegiance case) in 2004. Here I'd like to unpack Justice Thomas's view of the Establishment Clause and point to one important way in which it is in tension with his view of the Second Amendment.

Here's Justice Thomas's argument regarding the non-incorporation of the Establishment Clause, in a nutshell:

1) At the time of the Founding, at least six states had established churches, which the Establishment Clause was understood as leaving alone.

2) Indeed, the wording of the Establishment Clause -- "Congress shall make no law respecting an establishment of religion" (emphasis added) -- implies that its core purpose and effect was to block federal laws that interfered with state establishments. It doesn't forbid establishments, but laws respecting establishments. Thus, the Clause was chiefly a federalism principle.

3) To the extent that the Establishment Clause did anything else, it probably forbade (what Justice Thomas calls) the coercive federal establishment of a national religion.

4) Incorporation of the Bill of Rights via the liberty provision of the Fourteenth Amendment, as per official doctrine, or via the Amendment's Privileges or Immunities Clause, as preferred by Justice Thomas, only incorporates individual rights, but a federalism provision is not an individual rights provision, and so the Fourteenth Amendment should not be understood to incorporate the Establishment Clause against the states.

5) To be sure, there may be some liberty component of the Establishment Clause as a limit on federal action: If it forbids a coercive national establishment, then there is some protected freedom from religious coercion. But, that doesn't go very far because:

   a) It's not clear that the Establishment Clause forbids any national establishment;

   b) Even if it does, the protection for liberty would be incidental to the prohibition;


   c) The protection against coercion would be redundant with the Free Exercise Clause, which is properly incorporated as a right.

6) Moreover, even if one could get over those hurdles, it would be perverse to incorporate the Establishment Clause because then the Clause "would prohibit precisely what the Establishment Clause was intended to protect--state establishments of religion." (That's a quote from the Elk Grove concurrence, with the argument there attributed to Justice Stewart's dissent in Abington v. Schempp).

Accordingly, Justice Thomas has called for a reexamination of the assumption that the Establishment Clause binds the states, adding further that the pro-incorporation side should bear the burden of persuasion.

In the foregoing summary, I have tried to faithfully represent Justice Thomas's argument, without editorializing. I should note that one could find fault with a fair number of his points, but here I want to focus on just one: the sixth and final step. I would suggest that the same point applies (or should apply) to the Second Amendment.

Before coming to the Second Amendment in particular, though, it's worth noting that there are plausible arguments for the view that just about the entire Bill of Rights was originally understood as a kind of federalism provision, with individual rights complementing structural limits on federal power. Akhil Amar is probably the leading proponent of this view of the original understanding of the Bill of Rights. So, if it would be perverse to incorporate the Establishment Clause because that would turn it into a prohibition on just what it was intended to protect, it may be that incorporation of the Bill of Rights in general is perverse, as incorporation converts provisions that were intended to protect the states into prohibitions on the states.

The argument is even more powerful with respect to the Second Amendment in particular.  Most of Justice Scalia's argument in part II of his majority opinion in DC v. Heller (joined in full by Justice Thomas) goes to arguing that as originally understood, the "right to keep and bear arms" was an individual right that existed apart from military service of any sort. Nonetheless, he needs to reconcile his reading of the "operative" clause with the "prefatory" clause invoking a well-regulated militia. He does so by arguing "that the Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia." Put differently, the Second Amendment was chiefly a federalism principle that served its federalism purpose via an individual right.

By now the tension should be apparent: Why does Justice Thomas think that the Second Amendment is incorporated against the states (as he voted in McDonald v. Chicago)? What about step 6 of his argument against incorporation of the Establishment Clause? After all, it looks like incorporation of the Second Amendment forbids precisely what the Second Amendment was intended to protect: state (rather than federal) regulation of arms keeping and arms bearing.

I call this a tension rather than a contradiction, because there are ways that Justice Thomas might distinguish the Establishment Clause from the Second Amendment. Most obviously, he might note that the Second Amendment does contain an express "right", whereas the Establishment Clause does not--although recall that, per step 5, Justice Thomas's argument against incorporation of the Establishment Clause is meant to work even on the assumption that it does contain some individual right component.

I would also note that the stakes appear to be quite low--at least for Justice Thomas. Because he views the Establishment Clause as, at most, forbidding coercive establishments, incorporation of the Establishment Clause would only forbid official religious coercion, which is already forbidden by the Free Exercise Clause. Thus, Justice Thomas appears to be making this point simply for academic purposes--or perhaps because he recognizes that the stakes would be much higher for those members of the Court who do not think that the Establishment Clause forbids nothing other than coercion.

Finally, quite apart from any implications for other provisions of the Bill of Rights, is Justice Thomas right in his suggestion that the Establishment Clause is not incorporated? The most thorough academic response--answering "no" even on originalist grounds--is a 2013 Indiana Law Journal article by Professor Gedicks. I'll end by quoting his summary of the core of his argument:
The Clause is not a mere “reservation” of state power over religious establishment or disestablishment, as anti-incorporationists characterize it, but a disability that expressly precluded Congress from using its legislative power to establish a national religion. While the Clause indeed immunized the states from federal interference with their exercises of reserved power over religious establishment and disestablishment, it also affirmatively immunized the people from the effects of any federal establishment of religion. It is simply not accurate, as anti-incorporationists would have it, that the Clause lacked a dimension of substantive personal liberty susceptible of incorporation against the states through the Fourteenth Amendment. While the Establishment Clause disability indeed reserved to the states the exclusive power to establish or disestablish religion, it also substantively protected the people from threats to their liberty from a nationally established religion.