Book Review of "Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience" By Nathan S. Chapman and Michael W. McConnell, New York: Oxford University Press, 2023.
“Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience” offers a clear understanding of the establishment clause of the First Amendment by focusing on its origins and its modern applications.
The authors, Nathan S. Chapman and Michael W. McConnell, are both law professors. McConnell also has argued cases before the U.S. Supreme Court and served on the U.S. 10th Circuit Court of Appeals.
Their primary theme is that the establishment clause, which provides that “Congress shall make no law respecting an establishment of religion,” is designed to reinforce, rather than rest in tension with the accompanying free exercise clause [“Congress shall make no law . . . prohibiting the free exercise thereof”] and that the two clauses “work together to prohibit the government from using sticks or carrots to induce uniformity of religious belief and practice” (p. 3).
“[T]he Establishment Clause is not a thumb on the scale for secularism in public matters (let alone the opposite) but a constitutional commitment for Americans to agree to disagree about matters of religion — to refrain from using the power of government to coerce or induce uniformity of belief, whether that belief is Christian or non-Christian, secular or religious” (p. 6).
In assessing the original meaning of establishment, the authors examine the features of the establishments in the nine American colonies that originally had them. As Scott Gerber has pointed out in “Law and Religion in Colonial America: The Dissenting Colonies” (2023), the nature of establishment laws, which reflected British practice, varied from colony to colony. Chapman and McConnell argue that such laws fell into six categories, namely:
- "Control over doctrine, governance, and personnel of the church;
- compulsory church attendance;
- financial support;
- prohibitions on worship in dissenting churches;
- use of church institutions for public functions; and
- restriction of political participation to members of the established church." (p. 18)
The laws and practices were defended theologically as a means of guiding souls and politically as a means of promoting civic virtue.
In tracing the framing of the establishment clause of First Amendment, Chapman and McConnell note that it was not so much designed as “a separationist” but as a “states’ rights proposal” (p. 39) that would prohibit a national religious establishment while leaving remaining state establishments in place. In 1833, the last state abolished its established church, reflecting the growing idea that “establishment is unnecessary and even harmful to religion” (p. 44). Elements of disestablishment included:
- “Denominational equality;
- Free exercise and/or liberty of conscience;
- Repeal of compulsory religious attendance laws;
- Abolition of religious taxes;
- Autonomy of churches with respect to their doctrine, liturgy, and personnel; [and]
- Stripping the formerly established church of any exclusive public prerogatives or functions such as marriages, recordkeeping, or administration of the poor laws” (p. 57).
The question of whether government should permit the “incorporation” of religious bodies (an issue that particularly concerned James Madison) was eventually solved by adopting general incorporation laws that allowed religious groups to organize without the need for special legislation that had previously been required (p. 59). Chapman and McConnell argue that the disestablishing states did not oppose “the use of public funds to support social services, such as schools, orphanages, or hospitals when operated by religious institutions, even if they were imbued with religious teachings” (p. 70). This included continuing allocations for colleges with denominational affiliations that trained individuals for the ministry.
Although the authors think that the privileges and immunities clause rather than the due process clause of the 14th Amendment would have been a better avenue for applying the First Amendment and other provisions of the Bill of Rights to the states, they acknowledge the special difficulty (largely mitigated by state disestablishments) of applying the federalism aspects of the establishment clause to the states. They believe the failed federal Blaine Amendment in the 19th century and its more successful state counterparts point to the understanding that the establishment clause, as then interpreted, did not forbid aid to schools that contained a religious component but that the amendments’ attempts to preserve prayer and readings form the King James Version of the Bible in public schools was largely motivated by anti-Catholicism and the desire to retain a generic form of Protestant establishmentarianism there.
The authors scathingly critique the now abandoned three-part Lemon Test, which they consider largely responsible for pitting the two religion clauses of the First Amendment against one another by overemphasizing “separation at the expense of religious freedom” (p. 88). They particularly think that the “effects” and the “entanglement” prongs of the test created a Catch-22 for many programs the Supreme Court reviewed (p. 91).
The authors are pleased with the manner in which the Supreme Court has, in the wake of the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA), provided for religious accommodation, which they believe is consistent with the Founders’ concern for religious liberty. They point to a difference between appropriately “accommodating religious activity” and improperly “incentivizing it.” Wary of absolute accommodation requirements, they favor “play in the joints” when it comes to upholding “modern regulatory exemptions” (p. 110).
The authors believe that the high court got off track in its reasoning in Everson v. Board of Education, involving the reimbursement of bus transportation costs to parents, and that it should have been less fearful about “benefiting religion” and (consistent with the subtitle of their book) more focused on “enlarging the scope of individual religious choice” (p. 128), at least in cases that do not involve coercion. They therefore laud what they consider to be the modern court’s “volte-face” in this area (p. 137). They do not believe that the First Amendment requires states to fund private schools, but they do think that when such states provide such funding, they “may not discriminate against otherwise eligible schools on the ground that they are religious” (p. 142).
By contrast, the authors laud the Supreme Court decisions limiting public prayer and Bible reading in public schools, where students have little practical choice as to whether to participate. They do think that by subordinating the free exercise clause to the establishment clause, the reasoning in the decision in Engel v. Vitale systematically favored secularization (p. 150). They agree with decisions that allow for prayers at public meetings outside school settings.
Decrying the increasing number of highly divisive cases involving the display of religious symbols like manger scenes, crosses, and the Ten Commandments on public property, the authors are especially wary of removing long-established symbols, where government intervention might be interpreted as anti-religious rather than neutral. They also believe the court has been too liberal in granting standing in cases in which individuals profess to be offended by a religious symbol or display on public property. They classify Justice Sandra Day O’Connor’s “endorsement test” as “singularly unhelpful” (p. 164) because they believe that it confused “endorsement with preference” (p. 167). They also believe the “reasonable person” standard she introduced for ascertaining endorsement is far too subjective.
The authors think that governments have no business intervening in the selection and discipline of church-related employees. They laud the court’s abandonment of the “English rule,” which had required it to ascertain which set of believers in a split church came closest to its original doctrine. They argue that rather than awarding disputed church property claims in split congregations rigidly on the basis of whether a church was organized hierarchically or congregationally (they believe that many fall in between), the court should apply the “formal title doctrine,” which “looks to the formal legal documents governing ownership of property — deeds, trusts, corporate charters, and the like — to determine what body owns the property” (p. 183).
Chapman and McConnell conclude that the establishment clause resembles the free press clause in that it is designed to leave religion, like the formation of public opinion, to private entities, free from governmental licensing or control (p. 191).
This is a very readable book. Its primary virtue is that its authors use their wide knowledge and sound judgment accurately both to describe and assess First Amendment religious jurisprudence.
John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. This article was published on Dec. 1, 2023.