The Establishment Clause in History and Today

It is not especially controversial to observe that the Supreme Court is charting what some might claim are new directions in its Establishment Clause jurisprudence. Some others might say, though, that the new directions are actually ones that have long been charted, but were discarded by the Court in favor of other views its late 20th century doctrine. What’s new, on this view, is old.

In 2003, Professor Michael McConnell, then a judge on the U.S. Court of Appeals for the 10th Circuit, wrote what to my mind was one of the best articles about the meaning and scope of the Establishment Clause in American constitutional history, the colossal Establishment and Disestablishment at the Founding, Part I: Disestablishment of Religion. In the piece, Professor McConnell described systematically various categories of activity or behavior that were understood historically to be establishments of religion. McConnell’s focus on varieties of conduct or practice was deeply influential on my own view not only about the meaning of this Clause, but also on the nature of constitutional interpretation in general. But “Part II,” which seemed to be promised in the article’s title, never came. Years passed and it seemed that the project of completing the next installment was abandoned.

At long last, it looks like “Part II” has arrived, in the form of a new book by McConnell and Professor Nathan Chapman: Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience (Oxford University Press). The book looks like it contains two principal parts: historical and normative. It will be of great interest to anybody who studies and thinks about this area of law. For me, it will be especially interesting to see how the authors theorize the connection between the historical and the normative pieces of the book (incidentally, both Michael and Nathan are good friends of ours and longtime contributors to Center projects and programs–Michael keynoted our first Tradition Project conference and Nathan was recently here to present his work at our Colloquium in Law and Religion…warm congratulations to them both!).

The Establishment Clause of the First Amendment, “Congress shall make no law respecting an establishment of religion”, may be the most contentious and misunderstood provision of the entire U.S. Constitution. It lies at the heart of America’s culture wars. But what, exactly, is an “establishment of religion”? And what is a law “respecting” it?

Many commentators reduce the clause to “the separation of church and state.” This implies that church and state are at odds, that the public sphere must be secular, and that the Establishment Clause is in tension with the Free Exercise of Religion Clause. All of these implications misconstrue the Establishment Clause’s original purpose and enduring value for a religiously pluralistic society. The clause facilitates religious diversity and guarantees equality of religious freedom by prohibiting the government from coercing or inducing citizens to change their religious beliefs and practices.

In Agreeing to Disagree, Nathan S. Chapman and Michael W. McConnell detail the theological, political, and philosophical underpinnings of the Establishment Clause, state disestablishment, and the disestablishment norms applied to the states by the Fourteenth Amendment. Americans in the early Republic were intimately acquainted with the laws used in England, the colonies, and early states to enforce religious uniformity. The Establishment Clause was understood to prohibit the government from incentivizing such uniformity. Chapman and McConnell show how the U.S. Supreme Court has largely implemented these purposes in cases addressing prayer in school, state funding of religious schools, religious symbols on public property, and limits on religious accommodations. In one of the most thorough accounts of the Establishment Clause, Chapman and McConnell argue that the clause is best understood as a constitutional commitment for Americans to agree to disagree about matters of faith.

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Tingley v. Ferguson, the Ninth Circuit denied an en banc rehearing for challenges of free speech, free exercise, and vagueness to Washington State’s ban on conversion therapy on minors. The case was originally heard by a 3-judge panel, which upheld the ban.
  • In Gardner-Alfred v. Federal Reserve Bank of New York, the Southern District of New York held that two former employees could bring suit against the Bank for violations of Title VII, RFRA, and the Free Exercise Clause. The basis of the claims come from the Bank’s denial of a religious exemption from the Bank’s COVID vaccine mandate.
  • In L.B. ex rel Booth v. Simpson Cty. Sch. Dist., filed in the Southern District of Mississippi, a school district abandoned a policy that prohibited students from wearing masks with political or religious messages. The parties settled, and the school district will now permit the student to wear a mask that reads “Jesus Loves Me.”
  • In Scardina v. Masterpiece Cakeshop, the Colorado Court of Appeals issued a ruling on January 26, 2023, stating that the Colorado Anti-Discrimination Act did not infringe on Jack Phillips’ free exercise of religion (Phillips was the claimant in the different Masterpiece Cakeshop case decided by the Supreme Court in 2018). This case arose out of Phillips’ refusal to create a cake that celebrated and symbolized a gender transition because it would contravene his religious beliefs.
  • Indiana Supreme Court heard oral arguments in Members of the Medical Licensing Board of Indiana v. Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky, Inc. on January 19, 2023. The oral arguments dealt with a challenge to the state’s pro-life law, which prohibits abortion except in cases of rape, incest, fatal fetal anomalies, or when the woman’s life is at risk. Liberty Counsel filed an amicus brief on behalf of the National Hispanic Christian Leadership Conference defending the law.
  • Alabama Governor Kay Ivey issued Executive Order No. 733 on January 20, 2023, which requires a state executive-branch agency to enforce the Alabama Religious Freedom Amendment to the greatest extent practicable. For example, the order requires executive branch agencies to consider possible burdens on religious exercise when adopting administrative rules, and also to allow state employees to express their religious beliefs in the same manner as they would express non-religious views.