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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::


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    [::..archive..::]
    ::

    :: Tuesday, May 31, 2005 ::
    Justice Thomas: Establishment Clause is a federalism provision

    The Court has unanimously upheld the prison section of RLUIPA against an Estabishment Clause challenge. Justice Ginsburg wrote for the entire court, but Justice Thomas concurred to add:
    Even when enacting laws that bind the States pursuant to valid exercises of its enumerated powers, Congress need not observe strict separation between church and state, or steer clear of the subject of religion. It need only refrain from making laws “respecting an establishment of religion”; it must not interfere with a state establishment of religion. For example, Congress presumably could not require a State to establish a religion any more than it could preclude a State from establishing a religion.
    Now, before you conclude that Thomas would give a bright-green light to state establishments of religion, note that he also says, concerning the challenged section of RLUIPA, that it
    does not prohibit or interfere with state establishments, since no State has established (or constitutionally could establish, given an incorporated Clause) a religion.
    Otoh, he does not endorse the notion of "an incorporated [Establishment] Clause."

    :: David M. Wagner 12:13 PM [+] ::
    ...

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