Thomas Embraces ‘Wall of Separation’ Between Church, State

By Mark Walsh — September 18, 1991 3 min read
  • cation issues that are likely to come before the Supreme Court, such as school desegregation.

President Bush’s nominee to replace Associate Justice Thurgood Marshall spent four days before the panel, whose Democratic members were largely unsuccessful in their attempts to elicit his views on the concept of “natural law” and, by extension, the right of a woman to have an abortion.

Aside from the subjects of churchstate separation and school prayer, the federal appeals-court judge had little opportunity during the questioning to express his views on education issues that are likely to come before the Supreme Court, such as school desegregation.

Judge Thomas, the former head of the Education Department’s civil rights office and a past chairman of the Equal Employment Opportunity Commission, has been opposed by both major teachers’ unions and by many liberal advocacy groups for his conservative stands on issues such as affirmative action and busing to desegregate public schools.

Views on Religion

The hearings provided some clues on Judge Thomas’s views on church-state separation, a concept that has been a frequent source of friction in the field of public education.

“I think the ‘wall of separation’ is an appropriate metaphor,” Mr. Thomas said in reference to a phrase attributed to Thomas Jefferson. “I think we all believe that we would like to keep the government out of our beliefs and we would want to keep a separation between our religious lives and the government.”

The judge also appeared to endorse the Supreme Court’s legal test for deciding whether a government action represents an “establishment of religion” prohibited by the First Amendment.

Under the three-part test first outlined in the High Court’s 1971 case Lemon v. Kurtzman, to be constitutional a state action must have a secular purpose, must not have the primary effect of either advancing or inhibiting religion, and must not result in excessive entanglement between government and religion.

“I have no personal disagreement with the test,” the judge said. But, he added, “I recognize the Court has applied it with some degree of difficulty.”

Judge Thomas made clear he was aware of an ongoing debate among the Justices, as expressed in their recent opinions on church-state issues, over whether the Lemon test should be discarded in favor of a test that would permit a greater accommodation of religion in society.

“I think it’s a vibrant debate,” he said. “I have an open mind with respect to the debate over the application of the Lemon v. Kurtzman test.”

Senator Paul Simon, Democrat of Illinois, cited the boyhood experience of his House colleague, Representative Dan Glickman, a Kansas Democrat who is Jewish and was once asked to leave his public-school classroom when it came time to recite a Christian prayer. Mr. Thomas was asked whether he found such a practice offensive.

“When someone feels that he or she is excluded because of certain practices, such as those religious practices .... I think it’s wrong,” he replied.

Rob Boston, a spokesman for Americans United for Separation of Church and State, said last week he was glad to hear Mr. Thomas endorse the “wall of separation,” especially because Chief Justice William H. Rehnquist “has called for abandoning it.”

Tenure at O.C.R.

Judge Thomas also was asked last week about a controversy stemming from his 10-month stint at the Education Department under President Reagan.
In 1981 in Adams v. Bell, a legal action that was initiated during the Nixon Administration, two civil rights groups sought to have Mr. Thomas declared in contempt of court for failing to meet court-mandated timetables for investigating and acting on civil-rights complaints. The case was later dismissed on procedural grounds.

Mr. Thomas admitted to a federal judge that his office was not complying with the timetables. But last week he said that was because his office did all it could to meet them but the timetables were unrealistic.

“We did everything we could to comply with that order,” Mr. Thomas said.

Senator Dennis DeConcini, Democrat of Arizona, said he raised the issue to give the nominee the opportunity to explain himself, but he also suggested that Mr. Thomas should have been more forceful in 1981 in seeking relief from the court mandate. The judge in the case stopped short of finding Mr. Thomas in contempt of court for not complying with the timetables.

A version of this article appeared in the September 18, 1991 edition of Education Week as Thomas Embraces ‘Wall of Separation’ Between Church, State