Update on Newdow, Justice Thomas, and Professor Leiter

I've enjoyed, over the past few days, several e-mail exchanges with Professor Leiter, concerning his critical comments regarding Justice Thomas's Newdow opinion. (For a taste of the exchange, click here). Professor Leiter reminded me that, in his discussion, it was not Justice Thomas's *historical* argument about the original meaning and purpose of the Establishment Clause that was characterized as "lunatic" -- again, many scholars endorse it. Rather, his point was that "when there are legal arguments on both sides of a question--say, whether the Establishment Clause applies to the states--to adopt the side that has repulsive moral and political consequences is lunatic."

Now, as Professor Leiter and I have discussed, I have a more positive view of Justice Thomas's work and views than he does, and I am not convinced that embracing Thomas's position -- i.e., "the federal establishment clause does not apply against the states, but the free exercise clause does, and prevents state action that interferes with religious freedom and liberty of conscience, while probably permitting some things that today are regarded as 'endorsements' of religion" -- would lead to "repulsive moral and political consequences." Still, I thought I should clarify any misimpressions I might have created about his argument.

Rick