Adam wrote:

OK, you may now grin smugly and say "inmates in Ohio have more religious freedom than law-abiding parents in Indianapolis." Despite my doubts that Judge Bradford's decision in Marion County is the "most obvious violation of the Free Exercise clause ever," SCOTUS's opinion on a religious accommodation issue in prisons that receive federal funding, released today, comes at a time when the Free Exercise Clause is fresh on the mind.

I bet the SCOTUS planned it this way. After reading this blog, they figured the timing was perfect.

Seriously, I think the court got this one right all the way around. Rarely are unanimous decisions wrong decisions and this is no exception. The 6th circuit opinion was astonishing to me when it came down.

Thomas penned an interesting concurring opinion that traces the Establishment Clause as a limited federalism protection. Truly, Congress may make no law respecting establishment of religion, and Thomas states that Ohio's argument that Congress must refrain from infringing on a state's regulation of religion in any manner reads the word "establishment" much too broadly. Ohio's argument quoted Madison and James Iredell, and attempted to paint the quotes as demonstrative of the original meaning of the Establishment Clause, but Thomas assailed these bits as only being part of the discussion surrounding the Establishment Clause, and being more relevant to discarded Establishment Clause language ('Congress shall make no laws touching religion, or infringing the rights of conscience') than the actual text. Thomas's concurring opinion, thus, is notable for its relevance to recent discussions, for example here, (I swear there have been others) on originalism and constitutional interpretation.

Thomas' opinion here has been stated in a couple of other cases as well. He has argued against the Establishment clause being incorporated, and also for the "federalism only" interpretation of the Establishment clause, both of which are far outside the mainstream. That alone doesn't bother me much, as my views often are as well, but I think he's wrong on both counts. Doug Laycock, one of our foremost church/state scholars, has effectively answered Thomas in several places, most easily accessible here when he wrote:

I do not doubt that one meaning of the Clause in 1791 was that the federal government could not interfere with establishments in the
states. But I am equally sure that one meaning of the Clause in 1791 was that the federal government could take no steps toward a federal establishment of religion -- not in the states, and not in the federal district either. Either a federal establishment or a federal interference with a state establishment would be a law respecting an establishment.

The debate in the First Congress did not focus on the federalism implications. It focused on the meaning of establishment, and on how far the federal government should be restricted. The argument for prohibiting only preferential aid to favored denominations was rejected; the most broadly worded draft proposed was adopted. This of course goes to the debate over nonpreferentialism; but even before that, it goes to whether this Clause was only about federalism, or also about the proper relationship between religion and government. The debate was plainly about the latter; I think the federalism-only interpretation is demonstrably wrong.

At the very least, one must recognize that there were differences of opinion among the founders themselves and that Madison's views ultimately won out. Certainly as a matter of settled law, this debate ended a long time ago. Everson applied the establishment clause to the states and dozens of precedents in the last 65 years have followed on the same premise. Thomas is alone on the court in arguing for his position; not even Scalia, who is notoriously accomodationist on church/state matters, would go so far as to overturn those decisions. Again, that alone doesn't make Thomas wrong in my view. After all, I still think the court should go back and overturn the Slaughterhouse decisions from 1873 and restore the privileges and immunities clause, so I'm hardly one to say that stare decisis rules the day even if decisions were wrong. Indeed, that's one thing I like about Thomas, that he's more interested in what is true than what is expedient - even when I think he's wrong.

E$verson was a POS written by a POS and it cannot be defended. I like it better when you jettison whatever is currently mainstream and insist upon getting to the truth of the matter.

The Indianapolis judge is well thought of in Indianapolis. I asked a couple of officials of the Indiana Bar Association. Their advice was to wait and see what the appeal might conclude.

www.professorbainbridge.com/ disagrees and gives his reasons for why he thinks Thomas is correct.

Bainbridge provides a link to the opinion wherein I note two references to P. Hamburger's book, Separation of Church and State, 2002-a book with which Ed seems unfamiliar. I noted no references to Laycock.

Far more controversial are the land use provisions in RLUIPA. There are cases winding their way through the appeals process on this. Much of the dispute involves churches using RLUIPA to get out of local zoning ordinances, such as architectural review, set backs, parking lot size, and restrictions on use (such as religious schools, daycare, and food pantries). If one can extrapolate from Justice Ginsburg's decision on the institutionalized-persons provisions, one suspects this court will uphold the land-use provisions but will narrowly circumscribe the sort of zoning restrictions churches can contest.