AMAC Exclusive – By David Lewis Schaefer
Great political and legal disputes can center around a misrepresentation or misunderstanding of constitutional principles, and perhaps none has been more egregious than the claim that the First Amendment’s prohibition of laws “respecting” the establishment of religion (the Establishment Clause) creates a “wall of separation” between church and state, effectively banishing religion from public life. But such debates can sometimes be altered if a book comes along that challenges such a misunderstanding and its associated agenda. Constitutionalists and those who understand the value of religion for representative government’s success and survival can hope that Agreeing to Disagree by law professors Nathan S. Chapman and Michael W. McConnell will be one of those works.
In Agreeing to Disagree, Chapman and Michael McConnell offer both an exposition of the actual intent behind the Establishment Clause and an explanation of how it came to be applied against the states, as well as a reasoned critical analysis of the Supreme Court’s application of it starting in the mid-twentieth century to numerous controversial issues.
The book is written in clear, nontechnical language that should be easily accessible (and of interest) to nonlawyers, while offering thoughtful commentary from which members of the legal community will also benefit.
As the authors note at the outset, despite the controversies that have arisen over the Establishment Clause’s meaning over the past three-quarters of a century, at the time the First Amendment was ratified, “every American lawyer and probably every citizen knew” what the phrase “establishment of religion” meant.
In 1791, when the Bill of Rights was adopted, “roughly half the states still maintained some form” of religious establishment, while others had only recently abolished theirs. The elements of a full establishment, such as had existed in England, included government control over church doctrine, governance, and personnel; compulsory church attendance; prohibitions on worship in dissenting churches; government financial support of the established church; and even the restriction of political participation to members of that church.
The First Amendment’s ban clearly prohibited any such practices at the national level, but offered no such ban at the state level. The last state establishment, in Massachusetts, was abolished in 1833, so that the very term “establishment of religion” faded out of common usage.
The “wall of separation” phrase that is widely cited today actually comes from an 1801 letter by Thomas Jefferson, of all the prominent Founders probably the least sympathetic to organized religion, responding to a letter from the Danbury [Connecticut] Baptist Association. While recognizing that the First Amendment was not written to apply to state government actions, the Baptists sought reassurance against possible persecution by the Congregationalists who constituted a majority in their state. Jefferson’s assertion that the Amendment established a “wall of separation” between government and religion probably went far beyond what the Baptists wished to hear.
Debate over the “establishment of religion” was not revived until 1947, when the Supreme Court ruled in Everson v. Board of Education that the Establishment Clause now applied to the states thanks to its “incorporation” into the Fourteenth Amendment’s “due process” clause. Although a 5-4 Court majority in that case upheld the constitutionality of a town policy providing school bus services to students attending private and parochial as well as public schools (since the services were provided to all pupils without regard to religion) both the majority and the minority purported to rely on a “historical” analysis of the intentions of the First Amendment’s framers that distorted its meaning by relying solely on Jefferson’s phrase.
Over time, as Chapman and McConnell put it, the Everson case engendered a widespread assumption that the purpose of the Establishment Clause was not to prohibit government from favoring one religion over another, but rather “to protect a secular public sphere from the [ostensibly] dangerously divisive and irrational impulses of religion” as such.
As the authors observe, the First Congress’s debates indicate that this was far from the aim of the Establishment Clause’s framers. If anything, their intent (expressed by several speakers) was to protect state establishments from Congressional interference (hence the clause’s odd phrasing, “respecting an establishment of religion” instead of simply “establishing.”) Support in the Senate was animated chiefly by federalist concerns, not libertarian ones.
The authors’ survey of the debates on disestablishment at the state level that occurred from the Revolutionary era into the 19th century similarly contradicts the claim of some scholars that the Establishment Clause was aimed at society’s “secularization.”
Rather, “the popular movement against establishment was led by the most intensely religious sects,” some of whom were religious minorities who feared being dominated by the majority religion in their state, or (like the Baptists in Virginia) objected on theological grounds to compelling anyone to pay for the support of a church, even one to which he belonged.
In contrast, Chapman and McConnell note, “by the late eighteenth century,”, the arguments in favor of state establishments were typically grounded not on “theocratic purposes” but rather “on the secular concern,” expressed by George Washington in his Farewell Address, that religion was a necessary support for civic morality.
But contrary to Justice Clarence Thomas and others who find it “odd” that the Establishment Clause should now be read as applying against the states, despite its original intent having been (in part) to protect state establishments, the authors judge this application to be “mostly correct,” although they find fault with the ways the Court has applied it. While acknowledging difficulties in the incorporation doctrine, Chapman and McConnell note that it is now a matter of settled law.
The authors then examine various applications that the Court has made of the clause to state religion cases following Everson. Over succeeding decades, after applying the clause to school prayer, tax exemptions for churches, and accommodations for religious dissenters, in Lemon v. Kurtzman (1971) the Court “sought to consolidate” its jurisprudence by inventing a three-part test to determine a practice’s constitutionality. However, during the past two decades, the Court has largely abandoned the Lemon test on account of its ambiguity, overemphasis on church-state separation at the expense of religious freedom, and “mismatch with the historical understanding of disestablishment.”
Instead, the Justices have employed “context-specific” rules, an approach the authors believe “better reflects” the original intent of disestablishment and the “panoply of concerns” it entails. They proceed to offer assessments of the Court’s jurisprudence, and suggestions for rationalizing it, in each of the areas just listed.
Chapman and McConnell cite both “civil libertarian and pragmatic reasons” for endeavoring “to accommodate religious conscience” – for instance, by not requiring the Little Sisters of the Poor to finance abortions.
Not only do such accommodations respect individual conscience as both the Establishment and Free Exercise Clauses of the First Amendment were intended to do, but accommodating dissenters, they observe, also “makes it easier to build [legislative] coalitions in the face of social divisions.”
The policy of accommodation was exemplified by the exemption of conscientious objectors from military service that dates from the colonial era and has been incorporated in “every federal conscription statute.” Yet there will always be dogmatic objectors to practically any such accommodation: while military chaplains have been authorized by every Congress since the Continental Congress, the practice was challenged in 1985 by a group of “Harvard students with time on their hands.” Fortunately, a federal court upheld the practice.
As a general rule, the authors suggest distinguishing between practices that simply accommodate religious activity (e.g. allowing Jewish soldiers to wear yarmulkes) and those that would incentivize it (which may violate the Establishment Clause), such as tax exemptions. It isn’t clear whether Chapman and McConnell would disallow offering houses of worship the same sort of tax exemption that other eleemosynary institutions receive.
But the authors surely go too far, in view of the pro-religious intentions of the clause’s authors, in approving of the EEOC’s ruling that atheism must be treated as a religion(!) “for purposes of employment discrimination protections.”
Turning to government aid to religious schools, Chapman and McConnell first note that in the early nineteenth century, when “primary education was haphazard, private, and almost invariably religious,” governmental support for education, which typically took the form of grants to schools for educating the poor, was commonplace. Controversies over such funding arose only when ostensibly “nonsectarian” schools (which actually incorporated “the basics of Protestant Christianity” into their curriculum and practices) attempted “to monopolize government funding,” and were subsequently challenged by members of other religious denominations, notably Catholics. This culminated in the enactment in 29 states of “little Blaine amendments” blocking government assistance to Catholic schools.
While the era of such discrimination started to end in the post-World War II era, when legislatures began “extending public support to the secular components of Catholic education,” civil libertarians wrongly (in the authors’ judgment) objected, because they “view[ed] the Establishment Clause as about benefitting religion, rather than enlarging the scope of individual religious choice” (note the book’s subtitle).
After going to the libertarian extreme in Lemon of effectively disallowing even “salary supplements for teachers of secular subjects in nonpublic schools,” and subsequently banning the offering of publicly funded speech therapy in such schools, the Court abruptly repudiated its radical interpretation of the Establishment Clause starting in the late 1980s, rightly adopting, in the authors’ view, a doctrine of neutrality, holding that religious schools could not be denied public benefits (ranging from rubberized playground services to tuition tax credits) merely because they were religious.
It is somewhat surprising, in view of the authors’ frequent deference to long-established practice dating to the nation’s early history, to find them describing the Court’s 1962 ruling in Engel v. Vitale, holding prayer in public schools to be unconstitutional, as the “finest hour” of its Establishment Clause jurisprudence, on account of the “coercive pressure” experienced even by students who were free to leave the classroom if they found the prayer objectionable.
Chapman and McConnell barely allude to the extreme of this line of jurisprudential thinking, the Court’s 5-4 decision in Lee v. Weisman (1992), holding unconstitutional the recitation of a nondenominational benediction at a middle-school graduation – offered, in rotating years, by a minister, a priest, and a rabbi. What reasonable person – atheists included – could find that objectionable?
Chapman and McConnell return to sobriety in their chapter addressing the constitutionality of religious symbols on public grounds. While no case challenging such symbols reached the Court until the 1980s, litigation over them has since “proliferated.” Yet, since at the time of the founding, “Americans across the spectrum used biblical language and imagery” to fortify their words, to the point of adopting a Biblical image as the country’s official seal, “it is far from obvious that religious symbols should be regarded” as a constitutional issue at all. Indeed, “outside of religious symbols litigation, the Supreme Court has consistently held that litigants lack standing to challenge government practices when their only claim of injury is mere offense.”
Yet in 2010 a federal court mandated that a cross erected by the Veterans of Foreign Wars on a remote location on federally owned land in 1934 and dedicated “to the Memory of the Dead of All Wars” be “encased in a wooden box” so no passersby could see it was a cross. As a matter of practicality, the authors defer to the Court’s latest ruling (2019) that offers a “presumption of constitutionality” to symbols that were put up long enough ago to have withstood the “passage of time.” (This reviewer would have sided with the two concurring justices who denied that the plaintiffs had standing to sue. One may question whether the majority opinion will suffice to stem the tide of those who repeatedly complain, “I am offended!”)
Despite my reservations on some points, I highly recommend this book as an informative and thought-provoking guide to Establishment Clause jurisprudence.
David Lewis Schaefer is a Professor of Political Science, Emeritus, at College of the Holy Cross.