State governments cannot constitutionally establish an official religion, but Supreme Court Justice Clarence Thomas believes that they should be able to.

While most Americans know about the “wall of separation between church and state,” it often surprises people to learn that this exact phrase doesn’t appear in the Constitution. Instead, the First Amendment contains the Establishment Clause, which states: “Congress shall make no law respecting an establishment of religion.” At an absolute minimum, this prevents the federal government from declaring an official national religion.

Today, the Establishment Clause also prevents states from establishing official religions, but that wasn’t always the case. Initially, the First Amendment only constrained the federal government. States were free to do as they pleased, and early on, some even had official state churches. However, the 14th Amendment changed the constitutional landscape. Over time, the Supreme Court recognized that the 14th Amendment “incorporated” most of the rights in the Bill of Rights, meaning those protections now applied to state and local governments as well. The Supreme Court officially applied the Establishment Clause to the states in a 1947 landmark case. Since then, the Supreme Court has reaffirmed this principle nearly a dozen times. It is settled constitutional law.

However, for Thomas, it isn’t settled at all.

He firmly believes that the Establishment Clause should never have been applied to the states, and he argues the Supreme Court should “disincorporate” it. First voicing this perspective in 2004, he has repeatedly written separate opinions urging the court to reverse course. Thomas bases his argument on a confusing and intellectually dishonest view of states’ rights. He argues that the Establishment Clause wasn’t written to prevent states from establishing religions; rather, he believes it was written to prevent the federal government from interfering with each state’s right to establish one.

Yet, Thomas has a suspiciously different perspective when it comes to the First Amendment’s very next clause: the Free Exercise Clause. The Free Exercise Clause states that Congress shall make no law “prohibiting the free exercise of religion.” Like the Establishment Clause, the Supreme Court incorporated it to apply to the states. And despite the two clauses appearing in the same sentence and sharing the exact same introductory language explicitly telling Congress what it cannot do, Thomas claims the Free Exercise Clause should apply to the states, while the Establishment Clause should not.

Thomas claims this is because the Free Exercise Clause protects an individual right, whereas the Establishment Clause simply dictates what the government cannot do. This argument naively ignores the fundamental right the Establishment Clause protects: the individual right to be free from religion. Thomas’ stance relies on the premise that Americans do not have a constitutional right to be free from government-imposed religion, a belief antithetical not only to the First Amendment, but to the Founders themselves. Thomas Jefferson explicitly coined the “wall of separation” metaphor to guarantee that very freedom.

Furthermore, Thomas’ argument is contradictory. You cannot protect an expansive approach to “free exercise” while simultaneously arguing states can establish official religions. For true free exercise, individuals must be free from state-sponsored religion. If a state were to declare an official religion and pass laws based upon it, that state would directly infringe on the free exercise of anyone who practices a different faith or no faith at all. For example, if a state legally required taxpayer dollars to fund the construction of official churches, it would violate the free exercise rights of citizens whose own beliefs prohibit funding competing religious organizations. Disincorporating the Establishment Clause wouldn’t just upend the Constitution; it would actively restrict the free exercise of religion — the very right Thomas claims to fiercely protect.

The incorporation of the Establishment Clause is a bedrock principle of constitutional law. The fact that a sitting Supreme Court justice believes a state should have the power to declare itself a Christian state is jarring. And make no mistake, Thomas’ argument is about promoting a specific brand of conservative Christianity and pushing a Christian nationalist agenda. Any argument that a state could declare itself an official Jewish state or Muslim state is unrealistic and out of touch with reality. When Thomas argues for official state religion, the group he envisions imposing its religion on the people is Christian nationalists.

The United States was founded largely by people fleeing the oppression of official government religions, a historical reality the Founders intentionally rejected. Even if the “wall of separation” isn’t explicitly spelled out in the Constitution, the Founders built that wall to protect Americans from government overreach and give us true religious freedom — a crucial piece of history that Justice Thomas seems all too comfortable ignoring.

ABOUT THE AUTHOR
Emma Hanson joined the Freedom From Religion Foundation as a legal intern in May 2026. She graduated summa cum laude from St. Norbert College in 2024 and is currently a third-year student at the University of Wisconsin Law School. Emma currently serves as the Editor-in-Chief of the Wisconsin Journal of Law, Gender & Society.

Disclaimer: The views in this column are of the author and do not necessarily reflect those of the Freedom From Religion Foundation.