Of the eight justices concurring in Thomas, only one remains on the court - Justice Stevens. The sole dissenter in Thomas is currently the Chief Justice of the Supreme Court - William Rehnquist. From his dissent (cites and footnotes removed):
The decision today illustrates how far astray the Court has gone in interpreting the Free Exercise and Establishment Clauses of the First Amendment. Although the Court holds that a State is constitutionally required to provide direct financial assistance to persons solely on the basis of their religious beliefs and recognizes the "tension" between the two Clauses, it does little to help resolve that tension or to offer meaningful guidance to other courts which must decide cases like this on a day-by-day basis. Instead, it simply asserts that there is no Establishment Clause violation here and leaves the tension between the two Religion Clauses to be resolved on a case-by-case basis. As suggested above, however, I believe that the "tension" is largely of this Court's own making, and would diminish almost to the vanishing point if the Clauses were properly interpreted.Just as it did in Sherbert v. Verner, the Court today reads the Free Exercise Clause more broadly than is warranted. As to the proper interpretation of the Free Exercise Clause, I would accept the decision of Braunfeld v. Brown, and the dissent in Sherbert. In Braunfeld, we held that Sunday closing laws do not violate the First Amendment rights of Sabbatarians. Chief Justice Warren explained that the statute did not make unlawful any religious practices of appellants; it simply made the practice of their religious beliefs more expensive. We concluded that "[t]o strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i. e. legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature." Likewise in this case, it cannot be said that the State discriminated against Thomas on the basis of his religious beliefs or that he was denied benefits because he was a Jehovah's Witness. Where, as here, a State has enacted a general statute, the purpose and effect of which is to advance the State's secular goals, the Free Exercise Clause does not in my view require the State to conform that statute to the dictates of religious conscience of any group. As Justice Harlan recognized in his dissent in Sherbert v. Verner, supra: "Those situations in which the Constitution may require special treatment on account of religion are . . . few and far between." Like him I believe that although a State could choose to grant exemptions to religious persons from state unemployment regulations, a State is not constitutionally compelled to do so.
Willing to bet that Rehnquist has fundamentally changed his mind in the last twenty years, are you? ;)
Willing to bet that Rehnquist has fundamentally changed his mind in the last twenty years, are you?
It doesn't matter. That's where the Supreme Court decision in Landgraf comes into play. Federal civil statutes cannot be applied retroactively without specificity by Congress.
In other words, and especially if this were a criminal matter and not a civil one (ex post facto) - the laws in force at the time of the alleged misconduct are the laws that will apply in court.
Interpretation of the law is guided by legal precedent. The precedent in this case would not favor Rehnquist's view when he dissented in Thomas v. Review Board.
The only thing that can change this legal calculus is if the case at hand is appealed all the way to the Supreme Court and the court overrules itself. And that very, very rarely happens.