Constitutional horror: Clarence Thomas argues states can establish official religion

[Cerridwen]

57. Here ya go. Direct link to .pdf of opinion. (edited for subject line)

link to Opinion: http://www.supremecourt.gov/opinions/13pdf/12-696_bpm1.pdf

[center]TOWN OF GREECE, NEW YORK, PETITIONER
v.
SUSAN GALLOWAY ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT[/center]

thomas' opinion begins page 42

<minor snip>

As an initial matter, the Clause probably prohibits Congress from establishing a national religion. Cf. D Drakeman, Church, State, and Original Intent 260–262 (2010). The text of the Clause also suggests that Congress “could not interfere with state establishments, notwithstanding any argument that could be made based on Congress’ power under the Necessary and Proper Clause.” Newdow, supra, at 50 (opinion of THOMAS, J.). The language of the First Amendment (“Congress shall make no law”) “precisely tracked and inverted the exact wording” of the Necessary and Proper Clause (“Congress shall have power . . . to make all laws which shall be necessary and proper . . . ”), which was the subject of fierce criticism by Anti-Federalists at the time of ratification. A. Amar, The
Bill of Rights 39 (1998) (hereinafter Amar); see also Natelson, The Framing and Adoption of the Necessary and Proper Clause, in The Origins of the Necessary and Proper Clause 84, 94–96 (G. Lawson, G. Miller, R. Natelson, & G. Seidman eds. 2010) (summarizing Anti-Federalist claims that the Necessary and Proper Clause would aggrandize the powers of the Federal Government). That choice of language—“Congress shall make no law”— effectively denied Congress any power to regulate state establishments.

<snip because formatting .pdf to text sucks. bolding added>