A far-right legal group believes states are exempt from the Establishment Clause. Some Supreme Court justices agree

A far-right legal group believes states are exempt from the Establishment Clause. Some Supreme Court justices agree
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During the 1990s, Justice Clarence Thomas and the late Justice Antonin Scalia were viewed as the lunatic fringe of the U.S. Supreme Court. But their theocratic views and far-right social conservatism were balanced out by other justices, from liberal Justice Ruth Bader Ginsburg to moderate Justice Sandra Day O’Connor to Justice Anthony Kennedy — a Ronald Reagan appointee and right-wing libertarian who, although fiscally conservative, was quite protective of abortion rights and gay rights.

Those days are long gone. Theocrats, thanks largely to Senate Minority Leader Mitch McConnell and former President Donald Trump, now dominate the High Court — a fact that was painfully evident when the Court announced, on Friday, June 24, that it had voted to overturn Roe v. Wade and Thomas argued in favor of reconsidering protections for contraception and gay rights as well.

Freedom of religion is guaranteed in the U.S. Constitution — specifically, the 1st Amendment’s Establishment Clause, which states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Establishment Clause makes it abundantly clear that while people of all faiths can freely practice and promote them, the government cannot establish an official religion. This means that while Catholics, Protestants, Jews, Muslims, Hindus, Sikhs, Buddhists and Bahais are more than welcome to gather on New York City’s 5th Avenue and promote their faiths, the government itself has a strict separation of church and state.

Read more: Columnist likens U.S. Supreme Court’s right-wing supermajority to a ‘junta in long black robes’

But in Christian Right legal circles, some theocrats, including the far-right group America First Legal, are arguing that individual states are exempt from the Establishment Clause — and Reuters reporter Lawrence Hurley notes that the group believes that states have a right to decide “whether and to what extent they will establish religion within their borders.”

Moreover, America First Legal is hoping that the U.S. Supreme Court will officially take that position in a future ruling.

According to Religion News Service (RNS) reporter Jack Jenkins, Thomas and Justice Neil Gorsuch share America First Legal’s view of the Establishment Clause — and Justice Amy Coney Barrett has “expressed interest in the idea.”



Thomas, Gorsuch and Barrett are among the justices who voted to strike down Roe v. Wade in the case Dobbs v. Women’s Health Organization.

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