An originalist approach to due process can take several forms, and Justice Gorsuch's "surprise" decision in Dimaya v. Sessions reinforces this.
In a supreme irony, the First Amendment’s Establishment Clause, incorporated against state governments by the Supreme Court via the Fourteenth Amendment in 1947, is precisely the type of national usurpation of state government policies that the Clause was adopted to prohibit.
The First Amendment’s religion clauses form the well-known start to the Bill of Rights, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Amendment includes two different religion clauses, an Establishment Clause and a Free Exercise Clause. To understand how these clauses apply to state governments, we need first to understand the First Amendment itself, and then we need to understand the liberty guarantee of the Fourteenth Amendment, which is the means by which some parts of the U.S. Constitution’s Bill of Rights have come to apply to state governments.
While some overlap exists between the two clauses, each serves broadly different functions. When the U.S. Supreme Court first applied the Establishment Clause to the states in 1947—in Everson v. Board of Education—it did so without discussion of the nature of the Establishment Clause itself. The Court merely appealed to dictum from a Free Exercise case from 1943 which struck down a Pennsylvania tax on the sale of religious merchandise. The Court’s decision to incorporate the Establishment Clause was subject to scholarly criticism early on. The debate over the appropriateness of incorporating the Establishment clause revived in the early 2000s as a result of a series of concurring opinions by Justice Thomas.
The criticism of incorporating the Establishment Clause of the U.S. national Constitution and applying it to restrict state governments via the liberty guarantee of the Fourteenth Amendment arose because incorporation is based on a fundamental misreading of the Establishment Clause, and a misunderstanding of the nature of religious establishments. Justice Clarence Thomas initially questioned the application of the Establishment Clause to the states in the 2002 case of Zelman v. Simmons-Harris. He wrote that the Clause “originally protected States, and by extension, their citizens, from the imposition of an established religion by the Federal government.” He added: “Whether and how this Clause should constrain state action under the Fourteenth Amendment is a more difficult question.”
Thomas pushed further in 2004 in a concurring opinion in Elk Grove Unified School District v. Newdow, “I would take this opportunity to begin the process of rethinking the Establishment Clause . . . the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.” He reasserted his position a year later in Van Orden v. Perry, observing that “the Establishment Clause is best understood as a federalism provision—it protects state establishments from federal interference but does not protect any individual right.”
The Establishment Clause serves two purposes: it both prohibits Congress from Establishing a religion but it also prohibits Congress from meddling with state religious establishments.
This is clear from the otherwise curious wording of the Clause, which states, “Congress shall make no law respecting an establishment of religion . . .” If the only purpose of the Clause were to prohibit Congress from adopting a national religious establishment, there is more direct language that would have accomplished this. Something like, “Congress shall not establish a religion.” Sweet and simple.
Indeed, at one point in the consideration of what was to become the Constitution’s First Amendment, the proposed text considered by the House of Representatives was similarly direct, “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe on the rights on conscience.” The Senate’s originally considered text was similarly direct, “Congress shall make no law establishing articles of faith or a mode of worship . . .”
However, the verbiage of the Clause as adopted provides that Congress make no law “respecting an establishment of religion.” That is, the Clause prohibits Congress from making laws concerning or about religious establishments. This language not only prohibits Congress from creating a national religious establishment, it also prohibits Congress from even making laws concerning religious establishments that existed at the time in the states.
The history of the Establishment Clause is consistent with the double implication of the Clause’s text. During the time of ratification, a common Anti-Federalist objection to the proposed Constitution was that it would allow Congress to establish a uniform religion over the entire nation. Anti-Federalist commentator “Deliberator,” for example, objected to the unamended Constitution because “Congress may, if they think it for the ‘general welfare,’ establish an uniformity in religion through the United States.”
The accent of the objection is on the “uniform” rather than on the “establishment” part. A number of states had religious establishments at the time. (Religious establishments were generally understood narrowly at the time to mean state-imposed taxes going to support churches.) The Anti-Federalist writer “Agrippa,” from Massachusetts, whose state constitution expressly authorized tax support for churches, appealed to state diversity as the concern with the possibility that Congress be left with the power to establish a national religion:
Attention to religion and good morals is a distinguishing trait in our character. It is plain, therefore, that we require for regulation laws, which will not suit the circumstances of our southern brethren, and the laws made for them would not apply to us. Unhappiness would be the uniform product of such laws; for no state can be happy, when the laws contradict the general habits of the people, nor can any state retain its freedom, while there is power to make and enforce such laws.
In considering amendments to the newly adopted and functioning national Constitution, James Madison initially proposed an establishment clause that dealt with the first issue only. It dealt with Congress affirmatively establishing a religion for the nation without dealing with the second potential danger of Congress meddling with state religious establishments. Madison initially proposed this language, “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, not shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”
Both House and Senate altered Madison’s language. Because both used different language to do so, the phrasing needed to be harmonized in a joint committee. What came out was the language prohibiting Congress from making any law “respecting” a religious establishment. The language not only prohibits Congress from affirmatively establishing a national religion, it also prohibits Congress from making laws that meddle with state establishments.
The Establishment Clause as initially adopted thus contains a structural protection not for individuals, but for protection of state government religious establishments. This structural protection cannot be incorporated against the states by the Fourteenth Amendment. It makes no logical sense to do so given the structural guarantee protects state governments from national-level intrusion, not individuals. It would be akin to suggesting that the Tenth Amendment be incorporated against the states. It simply makes no sense.
A few recent law review articles have attempted to recover incorporation of the Establishment Clause by arguing the Fourteenth Amendment responded to state religious impositions in southern states prior to the Civil War (for example, here). Problems, however, bedevil these attempts. First, this conflates impositions on religious free exercise—which is an individual right—with religious establishments, which need not impose on individual rights. Second, it applies older, now rejected versions of “originalism” that allow what is actually written in constitutional texts to be amended by subjective intentions of drafters or their idiosyncratic legislative history.
While there is some overlap between an imposition on religious free exercise and an establishment of religion, robust forms of religious establishments can be created that do not restrict religious free exercise in the least. Despite conventional American wisdom to the contrary, religious establishments do not necessarily restrict religious free exercise.
In Cutter, for example, Thomas observed that “establishment at the founding involved, for example, mandatory observance or mandatory payment of taxes supporting ministers.” An opt out provision, or other use for a tax, could allow individual who do not wish funds to go to support religious institutions from having to do so. Most would say the state level “nudge” would create a religious establishment, but the ability to opt out prevents imposition on an individual right. Or consider a state’s display of the Ten Commandments. As Thomas points out, the mere display of the Ten Commandments, even by the state, does not coerce anyone.
The point is that the structural guarantee of the Establishment Clause can be preserved even with the incorporation of protections that prevent restricting individuals’ religious or non-religious observances.
The wisdom of any state religious establishment, however tepid, is another matter entirely. The important point cannot be lost, however, and it is one of interpretive integrity: The structural guarantee of the Establishment Clause was adopted to prevent the national government from imposing national-level uniformity on state-level religious policies. The U.S. Supreme Court’s incorporation of the Establishment Clause against the states in 1947 not only ignored its text and purpose, but held precisely the opposite of what the text and the purpose of the Clause exist to achieve.