Supreme Court nominee Judge Clarence Thomas told the Senate Judiciary Committee this week that the concept of the separation between church and state is “an important metaphor.”
That statement, said Marc Stern, legal director of the American Jewish Congress, goes a “long way to dispelling our concerns” about Thomas’ church-state views, little of which were known before his confirmation hearing began Tuesday.
But Stern added that unless Thomas also dispels its fears in two other areas, abortion and civil rights, AJCongress will urge the Senate not to confirm him.
Three other Jewish groups have taken a stand on the nomination: The National Council of Jewish Women and the Jewish Labor Committee oppose Thomas, and Agudath Israel of America supports him.
Thomas, who sits on the U.S. Court of Appeals for the District of Columbia, was nominated to replace retiring Justice Thurgood Marshall. From 1982 to 1989, Thomas chaired the Equal Employment Opportunity Commission, where he strongly opposed racial preferences.
Thomas’ statement about the separation between church and state is in sharp contrast to a 1985 dictum by Justice William Rehnquist, who is now the chief justice.
In Wallace v. Jaffree, a school prayer case, a 6-3 majority of the Supreme Court struck down a series of Alabama statutes that allowed public schools to provide a moment of silence each school day.
‘A METAPHOR BASED ON BAD HISTORY’
In a dissent, Rehnquist wrote: “The wall of separation between church and state is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.”
Americans United for the Separation Between Church and State called Thomas’ support for the metaphor “heartening” but said that statement “doesn’t follow that he will be a strict separationist.”
Robert Boston, a spokesman for the group, said that Justice Anthony Kennedy, at his confirmation a few years ago, also said he supported the separation of church and state — a position not very much in evidence in his subsequent rulings.
Thomas has been accused by some opponents of undergoing a “confirmation conversion,” distancing himself from past statements. But such a criticism cannot be made of his church-state record, said Boston, because the nominee lacks a “paper trail” on the subject.
By contrast, Judge Robert Bork, whose 1988 nomination was rejected by the Senate, tried to disavow some of his past statements critical of the church-state separation, Boston added.
In the one church-state area in which his past comments are known, Thomas told the conservative Heritage Foundation in 1985 that his mother “may be right” in saying that “when they took God out of the schools, the schools went to hell.” Religion, he said, “is certainly a source of positive values, and we need as many positive values in the schools as we can get.”
Thomas was referring to the Supreme Court’s 1962 and 1963 decisions striking down organized school prayer.
Thomas told the committee that “my comments there were not meant to in any way reflect on the legal rulings on the Establishment Clause or the Free Exercise Clause” of the First Amendment.
Following up on this point, Sen. Paul Simon (D-Ill.) told Thomas that Jewish Rep. Dan Glickman (D-Kan.), as a fourth-grader, “was excused while they had school prayer.”
“Every morning,” he said, “little Danny Glickman was being told, ‘You are different, and all the other fourth graders were being told he was different.’ “
RIGHT TO PRIVACY IS FUNDAMENTAL
Thomas, asked if he found that “offensive,” responded, “My concern would be with someone like Danny Glickman that when we consider cases in a constitutional context that we understand the effects of government’s perceived endorsement of one religion over another.”
Thomas said he has “no quarrel” with the Supreme Court’s tough test for ruling on Establishment Clause cases but that some justices feel that it will “need to be reformulated.”
Stern said he “can’t quibble with the fact that (Thomas) is describing what’s going on.” At the same time, Stern expressed concern that Thomas may be “buying into” the Bush administration’s view that the test for considering possible violations of the Establishment Clause should be relaxed.
On abortion, Thomas has refused to go into much detail on his view except to say that he believes that the right to privacy is a fundamental right imbedded in the Constitution. But he has refused to say whether a woman’s desire to have an abortion constitutes such a right.
A concern of the AJCongress is that Thomas has supported the notion of “natural rights,” meaning rights that should be guaranteed even if not contained in the Constitution. For example, Thomas has said that slavery should not have been allowed on U.S. soil because of the natural right to equality.
While such an interpretation of natural rights has not fueled concerns, some such as Stern are worried that Thomas might invoke natural law to protect the life of a fetus over a mother’s desires.
OVERWHELMING OPPOSITION TO QUOTAS
Natural law could also be invoked to protect private property in a way that bars the government from regulating zoning or land use, or applying minimum wage laws, Stern warned.
On civil rights, the AJCongress wants Thomas to say that he supports remedies to compensate those who suffered wrongly, including “numerical remedies” in the most extreme cases, said Stern.
But Stern said Democrats on the committee were not inclined to raise the subject, because they “don’t want to make a big fuss about quotas” given political fears about the U.S. public’s overwhelming opposition to them.
Because of Yom Kippur, the JTA Daily News Bulletin will not be published on Thursday, Sept. 19.
JTA has documented Jewish history in real-time for over a century. Keep our journalism strong by joining us in supporting independent, award-winning reporting.
The Archive of the Jewish Telegraphic Agency includes articles published from 1923 to 2008. Archive stories reflect the journalistic standards and practices of the time they were published.
