Date of this Version
Regent University Law Review (2007) 20: 37-56.
Equal religious liberty will be secure--and indeed will flourish--under partial incorporation. Our Nation is not a strictly-secular one, and our public culture may and should reflect the rich, religious diversity of our people. No one should be compelled to affirm any belief or participate in any religious practice, but no one has the right to silence others, to control which lessons public schools may teach and willing pupils may learn, or to censor the public culture. As Justice Thomas has put it so well,"[when rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, individual liberty." Equal liberty under the First Amendment is not equal when the Establishment Clause is interpreted to require a strict cleansing of religion from the public culture. Under Justice Thomas's approach to incorporation of the Establishment Clause, the religious liberty of all is respected without the kind of judicially-imposed religious apartheid that forbids the states from respecting the needs and traditions of religious citizens and subgroups. In other words, by taking the theory of incorporation seriously, Justice Thomas's jurisprudence of partial incorporation results in a triumph for pluralism and equal liberty underthe First and Fourteenth Amendments.