Thursday, June 17, 2004

An unlikely advocate of states' rights

I am a second class citizen again. As an atheist, I cannot in good conscience declare my allegiance to "the flag of the United States of America, one nation under God" because I do not believe that there is any God for this nation to be under. For a while, the U.S. Court of Appeals recognized what has always seemed like a no-brainer to me: the inclusion of the words "under God" in the Pledge is an unconstitutional establishment of religion. But three days ago the Supreme Court overturned the decision on the grounds that the person who brought the suit had no standing.

Fucking cowards.

Still, some of the Justices wrote dissenting opinions declaring that the Pledge is constitutional. It makes very interesting reading. Some of the reasoning is sound, some of it is twisted, and some of it is very, very scary.

Clarence Thomas, ironically, has the most clear reasoning among the dissenters. He squarely faces the fact that:

... as a matter of our precedent, the Pledge policy is unconstitutional.

But that is an unacceptable outcome to a religious fanatic like Thomas, so he goes on to rewrite the law in a most interesting way:

I believe, however, that Lee was wrongly decided. Lee depended on a notion of “coercion” that, as I discuss below, has no basis in law or reason. The kind of coercion implicated by the Religion Clauses is that accomplished “by force of law and threat of penalty.” 505 U. S., at 640 (SCALIA, J., dissenting); see id., at 640– 645. Peer pressure, unpleasant as it may be, is not coercion.

An ironic observation for a black man to make, but then Thomas was always the poster child for the proposition that even a man with dark skin can be a bigot.

But wait, there's still hope:

But rejection of Lee-style “coercion” does not suffice to settle this case. Although children are not coerced to pledge their allegiance, they are legally coerced to attend school. Cf., e.g., Schempp, supra; Engel v. Vitale, 370 U. S. 421 (1962). Because what is at issue is a state action, the question becomes whether the Pledge policy implicates a religious liberty right protected by the Fourteenth Amendment.

So far so good. Here's the scary part:

I accept that the Free Exercise Clause, which clearly protects an individual right, applies against the States through the Fourteenth Amendment. See Zelman, 536 U. S., at 679, and n. 4 (THOMAS, J., concurring). But the Establishment Clause is another matter. The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments.

So on Thomas's view, the First Amendment is not there to insure individual freedom of religion. It is there to prevent Congress from interfering with the rights of the states to establish official State religions!


Does Thomas not recall that we fought a civil war over this very issue? The civil war was not about slavery per se, it was about states' rights.

How ironic that one hundred and forty years after the issue was settled that states' rights are being resurrected by a black man named Tom. You couldn't sell that story as a movie.

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