Favoritism, Coercion, and the Establishment Clause

Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience. By Nathan S. Chapman and Michael W. McConnell. Oxford: Oxford University Press. $24.95.

Introduction

Nathan Chapman¹Pope F. Brock Associate Professor in Professional Responsibility, University of Georgia School of Law.
and Michael McConnell’s²Richard and Frances Mallery Professor of Law, Stanford Law School.
new book, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience, offers something for everyone. Written simply and in a helpfully instructive tone, the book gives lay audiences an accessible overview of the Establishment Clause and what the Supreme Court has done with it. But experts in the field will want to read it too, especially for the historical first part. When one thinks about this book together with Carl Esbeck and Jonathan Den Hartog’s recently edited book on the progress of disestablishment in the states,³Carl H. Esbeck & Jonathan J. Den Hartog, Introduction: The Task, Methodology, and Findings, in Disestablishment and Religious Dissent: Church-State Relations in the New American States, 1776–1833 3, 12 (Carl H. Esbeck & Jonathan J. Den Hartog eds., 2019).
one realizes how the past few years have given us some truly excellent single volumes covering the history of disestablishment in America.

As the title reflects, the book takes the Establishment Clause’s goal as protecting religious diversity and freedom of conscience. The first half is historical, centered in the eighteenth century, offering a rich account of the religious establishments in England and early America, along with the movements that worked to undo those establishments. The second half is application, centered in the late twentieth century, asking how the various kinds of modern Establishment Clause disputes should be resolved (with the first part’s historical account in mind). As the second half progresses, the book’s normative thesis becomes evident: the Supreme Court’s interpretation of the Establishment Clause has been wildly overbroad and ahistorical, and it needs to be cut back. The authors see the Court’s treatment of the Establishment Clause as both irony and tragedy, and this view explains the book’s title. In the hands of a misguided Court, the Establishment Clause has come to threaten the very religious diversity it was created to safeguard.

The book is excellent in many ways. Though some of the first half’s history is covered in an earlier article by one of the authors,⁴Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105 (2003).
and some of the second half’s criticisms seem fairly well-trodden by this point, both halves have worthwhile, fresh material. The second half expertly covers all the arteries of modern Establishment Clause litigation with genuine wit and insight, although it is probably the first half’s historical parts that justify the book staying permanently on an academic’s bookshelves.

But while I agree with the authors on many of the points they make, it is natural for any book review to focus on places where we see things differently. As it progresses, this Review will point out various soft spots in the book. More fundamentally, there is something about the book that the casual reader might feel intuitively—it sometimes seems like there are two different books here, sort of stapled together. The historical account of establishment and disestablishment in the first half separates easily from the criticisms of the Supreme Court that pervade the second half—many readers (and here I include myself) will fully accept the history but less than fully accept the criticisms.

In part, the disconnect arises because of the book’s maddening refusal to offer any master principle of the Establishment Clause. Instead, the book seeks to do constitutional interpretation by simple historical analogy. Historically, establishments of religion consisted of six particular categories of laws—like coerced church attendance (#2 on the book’s list) and financial support (#3) (p. 17). Therefore, the logic goes, the Establishment Clause today should be read to bar those same categories of laws. Now, in general, the book’s categories seem pretty right to me.⁵A similar four-category description of religious establishments appears in the casebook that McConnell and I coauthor together with Thomas Berg. Michael W. McConnell, Thomas C. Berg & Christopher C. Lund, Religion and the Constitution 13–15 (5th ed. 2022).
But the book does not really justify the exact contours that it gives them, and it does not talk much about what links or undergirds the six categories. If the book did that, it would probably lead back to a master principle, which the book apparently wants to avoid. But this ends up making the application section somewhat frustrating. For if one accepts the book’s historical account, but just frames the six categories ever so slightly differently, one could easily end up with a different (possibly far broader) Establishment Clause. In some ways a strength,⁶As for why it is a strength, see the line about how “[t]his new approach has a lot of things going for it” infra Part I.
the book’s methodology also becomes a weakness—it illustrates the difficulties in trying to derive meaning from history without recourse to principle. Thirty years ago, Michael McConnell himself attacked the Court for doing a similar thing in Marsh v. Chambers, and I think he was right then.⁷Here is the key passage:

Unless we can articulate some principle that explains why legislative chaplains might not violate the establishment clause, and demonstrate that that principle continues to be applicable today, we cannot uphold a practice that so clearly violates fundamental principles we recognize under the clause . . . . The insistence on a principle, and not just historical fact, follows from the function of interpretation as enforcing the Constitution as law. If the Constitution is law, it must embody principles so that we can ensure that like cases are treated alike, and that those governed by the Constitution can understand what is required of them. If Marsh v. Chambers jurisprudence governs the day, we would have nothing but miscellaneous glimpses of constitutional meaning.

Michael W. McConnell, On Reading the Constitution, 73 Cornell L. Rev. 359, 362–63 (1988).

At times, this becomes somewhat frustrating. Take the issue of coercion. Maybe the single biggest Establishment Clause issue is whether the Court will dial back, or even abandon, the school-prayer cases. Those cases had said coercion was not required—schools could not lead religious exercises, the Court thought, even if objecting students were excused without penalty.⁸Sch. Dist. v. Schempp, 374 U.S. 203, 224–25. The Court was clear in both Schempp and Engel that coercion was not a required element for an Establishment Clause claim. Id. at 223 (“[A] violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended.”); Engel v. Vitale, 370 U.S. 421, 430 (1962) (“The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion . . . .”).
The book is strikingly ambivalent about coercion. The book calls the school-prayer decisions the “Court’s finest hour with the Establishment Clause” (p. 90), and at points, it suggests coercion shouldn’t be a required element for Establishment Clause claims.⁹P. 94 (“[A]n official proclamation of religious doctrine by law would violate the Clause even if there were no compulsive sanction.”); id. (“If the Court had merely said that there are some contexts in which coercion is not a necessary element in an Establishment Clause claim, this would have been unobjectionable and historically accurate.”).
Yet at other points, the book seems to suggest coercion should be required. For example, in defending cases like Town of Greece v. Galloway, which upheld a modern legislative-prayer scheme, the book openly defends the Court’s reintroduction of coercion as a required element.¹⁰See pp. 95–97.
And the book is full of lines like this one: “Assuming that the school prayer is realistically coercive, it is at odds with a basic tenet of disestablishment” (p. 90). So is coercion required or not?

One thing is sure: this book comes at the right time. After decades of relatively static rules, a newly constituted Supreme Court has returned to the Religion Clauses as if hungry for them. The last few terms have seen the Court take on all the major topics—religious exemptions, governmental funding of religious institutions, government-sponsored religious symbols, and the line between private and governmental speech.¹¹Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022); Carson v. Makin, 142 S. Ct. 1987 (2022); Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021); Tandon v. Newsom, 141 S. Ct. 1294 (2021); Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246 (2020); Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020); Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019); Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719 (2018); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017).
Some changes have already been made. But the tone of the opinions and accompanying concurrences suggests bigger changes down the road.

This book will undoubtedly be influential. Nathan Chapman is a rising star in the field. And Michael McConnell is one of the most established and important church-state scholars in America—the justices have already recognized the importance of his historical accounts.¹²On the free exercise side, see Fulton, 141 S. Ct. at 1883, 1889 (Alito, J., concurring) (citing Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990)). On the Establishment Clause side, see Shurtleff v. City of Boston, 142 S. Ct. 1583, 1609 (2022) (Gorsuch, J., concurring); Espinoza, 140 S. Ct. at 2264 (Thomas, J., concurring); Town of Greece v. Galloway, 572 U.S. 565, 605 (2014) (Thomas, J., concurring); Cutter v. Wilkinson, 544 U.S. 709, 726 (2005) (Thomas, J., concurring) (all citing McConnell, supra note 4).
Moreover, the book’s authors and some of the Court’s justices share a number of things in common—warmth toward constitutional interpretation grounded in history and the original understanding, and coolness toward what the Warren and Burger Courts have done with the Establishment Clause. The conservatives on the Court have nothing nice to say about the Lemon test, for example, and neither does the book.

One possibility then is that the justices will run with the parts of the book that suggest coercion should be required and ignore the parts that say it shouldn’t. Indeed, this may already be happening. Last term, in a speech case, Justice Gorsuch offered an account of the Establishment Clause built on McConnell’s six categories, smartly noting that “[m]ost of these [categories] reflect forms of coercion regarding religion or its exercise.”¹³Shurtleff, 142 S. Ct. at 1609 (Gorsuch, J., concurring).
And in Kennedy v. Bremerton, the Court dismissed both the Lemon test as well as the endorsement test in favor of a coercion test of some stripe.¹⁴See Kennedy, 142 S. Ct. at 2427, 2429 (“No doubt, too, coercion along these lines was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment. Members of this Court have sometimes disagreed on what exactly qualifies as impermissible coercion in light of the original meaning of the Establishment Clause.”).
For historical support on the change, Bremerton cited a single academic work, McConnell’s old 2005 article—the one that was a seed of this book.¹⁵Id. at 2429 n.5 (citing McConnell, supra note 4).
Like that old article, and another one before it,¹⁶See Michael W. McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & Mary L. Rev. 933 (1986).
this new book could easily be taken to suggest that coercion is the right standard.

But it should not be taken that way. For the essence of religious establishment, I would argue, was not coercion at all. To be sure, the most important elements of a religious establishment—and the ones most damaging to religious liberty—were its coercive ones. But coercion was something that religious establishments did; it was not what religious establishments were. If we think of a religious establishment as a tree, the book’s six categories are its branches. But the trunk of the tree—the thing that undergirds and connects the branches, the thing that links the categories and is their source, the thing that gives life to the tree—is the government deciding religious truth. The government deciding religious truth is antecedent to all six of the book’s categories; none of the six are possible without the government having first declared religious truth.

This, of course, the Framers saw as religious establishment and vigorously opposed. “That the Civil Magistrate is a competent Judge of Religious truth,” Madison says in the Memorial and Remonstrance, is “an arrogant pretension falsified by the contradictory opinions of Rulers in all ages.”¹⁷ James Madison, Memorial and Remonstrance Against Religious Assessments (1785), reprinted in 2 The Writings of James Madison 183, 187 (Gaillard Hunt ed., 1901).
Government does not declare religious truth, decide religious questions, make religious choices, or advance religious worldviews. In short, government stays out of religious controversies. And in our own age, where maybe the single biggest religious controversy is over God’s existence, this same principle requires the government to stay out of fights over whether God exists and what God wants from humankind.

The book hesitates to say this in so many words, but I think the authors too see this as disestablishment’s essence. Early on, the book has a paragraph that would be easy to overlook, because it is relatively brief and is not returned to until much later. But at the beginning of the first chapter, before explaining the six categories of laws that constitute religious establishments, the book says this:

An establishment is the promotion and inculcation of a common set of beliefs through governmental authority. An establishment may be narrow (focused on a particular set of beliefs) or broad (encompassing a range of opinion). It may be more or less coercive, and it may be tolerant or intolerant of other views. During the period between initial settlement and ultimate disestablishment, American religious establishments moved from being narrow, coercive, and intolerant to being broad, relatively noncoercive, and tolerant. (pp. 16–17)

This sounds exactly right to me. But from this, one could come away with a quite different take on the Establishment Clause. If the essence of disestablishment was that the government could not promote or inculcate religious beliefs, then government-sponsored prayers might be unconstitutional even without coercion, and government-sponsored religious displays might cross the line to the extent they promote or inculcate religious beliefs. (If it sounds strange to you that a religious display could be thought of this way, remember the first Supreme Court case in this line involved Ten Commandments displays in public school classrooms.)¹⁸Stone v. Graham, 449 U.S. 39 (1980).

And if all this is right, then one equally legitimate way of taking the book’s history is not as a ban on religious coercion but as a more general ban on religious favoritism. This piece ends by briefly canvassing some historical materials in support of this idea.

I. An Overview of the Book

The book is organized simply enough. It has two parts of roughly equal length—the first titled, “History,” and the second titled, “Application.” The first half seeks to discover the original meaning of the Establishment Clause; the second half seeks to apply that meaning to the usual range of modern Establishment Clause issues.

But this book differs from other works trying to figure out the original meaning of the Establishment Clause. Traditionally, such works focus on the adoption of the Establishment Clause by the First Congress in 1789, and maybe the subsequent ratification of the Establishment Clause by the states. From that history, they then derive some abstract master principle and then operationalize it to resolve the universe of Establishment Clause disputes. Much of the scholarship in the 1980s and 1990s looked like this. Maybe the master principle is coercion—the government can advance religion as long as it does not coerce people religiously.¹⁹See, e.g., McConnell, supra note 16, at 936; County of Allegheny v. Am. Civ. Liberties Union, 492 U.S. 573, 659–61 (1989) (Kennedy, J., dissenting).
Or maybe it is preferentialism—the government can advance religion in general but not a particular religion. ²⁰See, e.g., Wallace v. Jaffree, 472 U.S. 38, 91–114 (1985) (Rehnquist, J., dissenting) (arguing for this position at great length); Michael J. Malbin, Religion and Politics, The Intentions of the Authors of the First Amendment (1978); Robert L. Cord, Church-State Separation: Restoring the “No Preference” Doctrine of the First Amendment, 9 Harv. J.L. & Pub. Pol’y 129 (1986).
Or maybe the two should be combined somehow.²¹See, e.g., Lee v. Weisman, 505 U.S. 577, 641 (1992) (Scalia, J., dissenting) (arguing that the Establishment Clause forbids “coercion” and that “even when no legal coercion is present,” a “government-sponsored endorsement of religion [is unconstitutional] . . . where the endorsement is sectarian”).
At every turn, opponents sprung up, claiming these were not the right master principles,²²See, e.g., Douglas Laycock, “Noncoercive” Support for Religion: Another False Claim About the Establishment Clause, 26 Val. U. L. Rev. 37 (1992) [hereinafter Laycock, “Noncoercive” Support for Religion]; Douglas Laycock, “Nonpreferential” Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875 (1986).
while naysayers doubted that any master principle could reconcile all the apparent contradictions in the historical evidence.²³See, e.g., Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (1995).

But this book starts from a different place. Instead of asking what principle the Framers had in mind when they adopted the Establishment Clause, the book focuses on the problem the Establishment Clause was meant to solve. The Establishment Clause was meant to end religious establishments.²⁴Of course, the Establishment Clause only barred religious establishments at the federal level. It did not touch religious establishments at the state level. That came later. See Esbeck & Hartog, supra note 3, at 8–10. The book also deals with the more complicated argument that the Establishment Clause meant to protect state-level establishments and thus is incapable of incorporation against the states. It ultimately decides to reject the claim (pp. 54–55).
So what was a “religious establishment”? If we could just discern the meaning of that legal term of art, we could make it into a roadmap for constitutional interpretation. We simply figure out the kinds of laws that historically made up a religious establishment and then read the Establishment Clause to bar those kinds of laws and their contemporary equivalents.

This new approach has a lot of things going for it. It dovetails nicely with recent moves within originalism scholarship, mirroring the shift some would make from original-meaning originalism to original-law originalism.²⁵See, e.g., Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J.L. & Pub. Pol’y 817, 874 (2015) (“What we’re looking for from the Constitution isn’t really what its text originally said . . . but what its enactment originally did, as a matter of Founding-era law.”).
It avoids the opacity and, well, messiness of the Establishment Clause’s actual enactment—namely, how the Establishment Clause’s final language differed from all previous drafts and was hastily agreed to by a small six-person committee that left no record about what its alterations were supposed to mean.²⁶This history is compiled carefully, taking over fifty pages in Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, 2011 Utah L. Rev. 489, 525–83 (2011).
This new approach also necessarily broadens the scope of the book, making it more ambitious (and more interesting) than others. Rather than focusing on a narrow set of events in 1789 and immediately afterward, the book spans the entire history of religious establishments in England and the early American colonies to figure out just what these “religious establishments” were that the Establishment Clause meant to end.

The book tells us its ultimate conclusion in the first chapter. Establishments of religion, the book claims, were reflected in six different kinds of laws (p. 17): (1) laws regulating the established church and its personnel, (2) laws requiring compulsory attendance at that church, (3) laws financially supporting that church, (4) laws prohibiting worship in other churches, (5) laws using the established church for public functions, and (6) laws limiting political participation to members of the established church.²⁷Others have come up with similar descriptions, maybe taken from McConnell. See, e.g., Esbeck & Hartog, supra note 3, at 6–7 (offering five categories).
The first chapter then documents the variety of these kinds of laws in England and the American colonies, explaining how they evolved (typically weakening) over time and simultaneously surveying the various political and theological rationales offered for and against them.

While Chapter 1 broadly surveys centuries of English and colonial history to discern the meaning of establishment and disestablishment, Chapter 2 turns to a specific point in time—the drafting, enactment, and ratification of the First Amendment. It traces how the Establishment Clause evolved from Madison’s early draft proposals to the versions considered by the House Select Committee, the full House, the Senate, and then, finally, the Joint Committee’s final version. While not particularly new, this chapter nevertheless provides a nice description of the relevant debates—unpacking the different takes of Madison, Gerry, Huntington, Livermore, and Ames. This section concludes that the Establishment Clause “does two things: it broadly prevents any establishment of religion at the federal level . . . and it protects state establishments from federal interference” (p. 30).

Chapter 3 then turns to developments after the First Amendment, tracing the decline and dissolution of state-level religious establishments. As with Carl Esbeck and Jonathan Den Hartog’s recent edited volume,²⁸Id. at 12.
the emphasis is how religious disestablishment unfolded slowly, in pieces, and in different ways in different places. Different states had different religious establishments, composed of different combinations of different forms of the six basic elements. Religious establishments did not disappear overnight; often elements were lost one by one over decades: “Because the legal substance of establishment was different in every state, the process and pace of disestablishment varied” (p. 36). The book pays particular attention to Virginia, in part because of its importance, in part because of its extensive debates over disestablishment (p. 34), and in part because of the novel issues it faced with regard to the formerly established Anglican church—like whether the church should be forced to give up some of the land it acquired from taxpayers back when it was the established church (pp. 15, 43), and whether legal incorporation of the church amounted to religious establishment (pp. 42–43).

In Chapters 4 and 5, the book begins transitioning to modern issues, and here things grow a little more controversial. Chapter 4 discusses the “special challenge for the incorporation theory” (pp. 54–55) that the Establishment Clause poses—if the point of the Establishment Clause was to protect state establishments, then incorporating the Establishment Clause essentially destroys that aim. A few justices have taken this to reject incorporation of the Establishment Clause.²⁹Justice Gorsuch has now joined Justice Thomas in adopting this position. See Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2263 (2020) (Thomas, J., concurring.) (“[A]t the founding, the Clause served only to ‘protec[t] States, and by extension their citizens, from the imposition of an established religion by the Federal Government.’ ” (emphasis omitted) (quoting Zelman v. Simmons-Harris, 536 U.S. 639, 678 (2002) (Thomas, J., concurring))).
The book rebuts this claim. The 1789 Establishment Clause did “two quite different things”: it entitled states to have religious establishments, and it forbade Congress from similarly having religious establishments (p. 55). The Fourteenth Amendment destroyed the first part even as it incorporated the second part (p. 55).

Even so, the book makes a strange turn here. Having just defended the incorporation of the Establishment Clause as an individual right under the Privileges and Immunities Clause,³⁰See p. 54.
the book sees a problem it feels it needs to solve. Because state-level religious establishments had noncoercive elements, incorporation seemingly would require states to get rid of those noncoercive elements of establishment along with the more coercive ones (p. 55). But the book apparently wants to avoid that conclusion, so it suggests a different way of getting rid of Establishment Clause claims where coercion might be absent: standing. “[I]t could be that some noncoercive acts, such as declaring an official religion, violate the Establishment Clause but no one has standing to challenge them in court” (p. 54). Now, standing is a different topic; perhaps there should be no standing in such cases.³¹Here too my views differ from those of the book’s authors. In American Legion, McConnell and I wrote dueling amicus briefs about standing under the Establishment Clause—Justice Gorsuch’s concurring opinion cited McConnell’s brief while Justice Ginsburg’s dissenting opinion cited mine. Compare Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2099 (2019) (Gorsuch, J., concurring) (citing McConnell’s brief for the Becket Fund), with id. at 2105 n.3 (Ginsburg, J., dissenting) (citing my brief for a group of law professors).
But for a book about the Establishment Clause (and not standing), the whole thing comes off a little odd—as if the book caught itself accidentally recommending a broader establishment clause and hastily had to find some way to correct that mistake.

Titled “The Rise and Fall of the Lemon Test,” Chapter 5 introduces us to the book’s main villain. The book sees Lemon as anticanon—Lemon adopted a grand unified principle of the Establishment Clause based on sloppy history that was hostile to religion itself (and not just religious establishment).³²Pp. 58–59 (citing Lemon v. Kurtzman, 403 U.S. 602 (1971)). Later on, they cite Justice Goldberg’s concurrence in one of the school-prayer cases, where he feared that neutrality would “partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive dedication to the secular and a passive, or even active, hostility to the religious.” P. 96 (quoting Sch. Dist. v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring)).
The book criticizes Lemon’s “conceptual ambiguity,” its “over-emphasi[s] [on] separationism at the expense of religious freedom,” and its inconsistency with any “historical understanding of disestablishment” (p. 59).

These critiques are well-worn but explained deftly. Certainly, I share some of the book’s skepticism about Lemon, both for what it did (in how it restricted religious groups from receiving funds on equal terms with other groups) and in what it said (in how it implied religious arguments were constitutionally inadmissible in public debates). But the book blames the villain too much. The Lemon test did not require the Court to adopt the vigorous no-aid position it held to for so long—the Court, in fact, kept Lemon long after it had discarded that position (pp. 58–59). And as I will discuss more later, at Lemon’s core is a principle with genuine historical roots—Lemon was built off Everson’s notion of religious neutrality, which in turn was built off the idea that the state does not resolve questions of religious truth. The Establishment Clause, Everson said, “requires the state to be a neutral in its relations with groups of religious believers and non-believers,” and thus forbids “laws which aid one religion, aid all religions, or prefer one religion over another.”³³See Everson v. Bd. of Educ., 330 U.S. 1, 15, 18 (1947).
Some Lemon decisions may have been bad, but is that wrong too? Like the book, the Court too dislikes Lemon. But also like the book, the Court cannot seem to get far enough away from it. Take American Legion, the Court’s recent decision upholding a government-sponsored war-memorial cross. American Legion viciously attacks Lemon.³⁴Am. Legion, 139 S. Ct. at 2080 (2019) (plurality opinion); id. at 2091 (Breyer, J., concurring); id. at 2093 (Kavanaugh, J., concurring); id. at 2097 (Thomas, J., concurring); id. at 2101 (Gorsuch, J., concurring).
But the Court just as easily could have applied the Lemon test—after all, the main thrust of the majority opinion was that there were genuine secular purposes and effects in the government maintaining the cross.³⁵Id. at 2090.

Finally, at the end of Chapter 5, we get an inkling of an answer to the important question: what should replace Lemon? The book forcefully rejects any master principle:

Instead of a single Establishment Clause test, the Court has developed context-sensitive doctrines that reflect a more accurate understanding of the history of religious disestablishment. We think this approach better reflects not only the original understanding of the Clause, but also the full panoply of concerns originally animating disestablishment, including, importantly, equal religious liberty. (p. 60)

At this point, the book turns to application. Chapter 6 focuses on religious exemptions and rejects the notion that the Establishment Clause limits them in any significant way. Religious exemptions go back to the Founding; no one then thought religious exemptions unconstitutional or part of a religious establishment. On top of that, American law nowadays is full of beneficent religious exemptions that enable religious people to live their lives freely (pp. 64–71). After unpacking the Court’s recent decisions in this area (which have similarly minimized the role of the Establishment Clause), the book attacks the “third-party harm argument”—the idea that the Establishment Clause bars religious accommodations that cause harm to third parties. Religious exemptions may harm people. But the lack of a religious exemption also harms someone—the religious believer seeking an exemption. “While this kind of interest-weighing is essential for the legislative branch, it should not be converted into a constitutional restriction” (pp. 71–73).

Chapter 7 focuses on the funding of religious institutions. It begins in the nineteenth century, where the reliably Protestant nature of the newly forming public schools sets off a debate. Newly immigrating Catholics ask how it is fair for their tax money to fund what are essentially Protestant schools when Protestants pay no tax money to Catholic schools. The book slowly unpacks the history of this era—from the fights over the Blaine Amendment in the nineteenth century, to Pierce v. Society of Sisters in the early twentieth, and then to Everson itself in 1947 (pp. 76–82). It then traces the slow about-face that happens over the next seven decades: from the Establishment Clause forbidding even-handed aid to religious institutions in cases like Lemon, to the Establishment Clause allowing even-handed aid in cases like Zelman, to the Free Exercise Clause now requiring even-handed aid in cases like Carson. “[T]he current doctrine, in which neutrality is the reigning principle, is truer to the history and theory of disestablishment in America” (p. 91).

Chapter 8 addresses government-sponsored religious exercises, and Chapter 9 addresses government-sponsored religious displays. More than the others, these chapters give a sense of the book’s cabined tensions. The book praises the Court’s early school-prayer decisions, calling them “the Court’s finest hour with the Establishment Clause” (p. 92). “It is easy for the Court to do the right thing . . . when it will be praised for so doing,” the book notes, but “[i]t is harder to act in the face of public opposition and longstanding practice” (p. 92). Indeed. But even so, the book hates the reasoning of these same cases—for it was here the Court first abandoned coercion as a requirement for Establishment Clause claims. It would have been better, the book thinks, for the Court to have simply said the school environment was coercive—even though students could be excused from the prayers without penalty, the social context imposed undeniable pressure on them to comply.³⁶See p. 94. Of course, this sort of idea about coercion, associated most with Justice Kennedy’s majority opinion in Lee v. Weisman, 505 U.S. 577 (1992), has been condemned as elastic and results-oriented by some justices. See id. at 641 (Scalia, J., dissenting) (mocking this as “ersatz, ‘peer-pressure’ psycho-coercion”).

Of course, it’s understandable why the Court did not go that route. Schools would have continued their prayers but just tried to dial back the coercion enough for judicial approval. Prayers and Bible readings would have been held right before school, right after school, at lunch, or during breaks or recess. Bible readings would have been done not by school employees but by outside clergy, parents, or student volunteers. Even as it was, many school districts worked hard to evade Engel and Schempp.³⁷Excellent citations to the literature are provided in Note, The Unconstitutionality of State Statutes Authorizing Moments of Silence in the Public Schools, 96 Harv. L. Rev. 1874, 1888–89 (1983). For a recent, thoughtful take on Engel and Schempp and how they were received, see Corinna Barrett Lain, God, Civic Virtue, and the American Way: Reconstructing Engel, 67 Stan. L. Rev. 479, 507–38 (2015).
The book’s path would have encouraged such evasions and given them plausible legal footing.

These chapters spend significant time suggesting the Court should never have abandoned a coercion standard. Doing so created asymmetry between the Free Exercise and Establishment Clauses, the book says. “[A]ny government action favorable to religion raises an Establishment Clause problem whether any person is coerced by it or not, but government action unfavorable to religion can be challenged only when it involves direct coercion” (p. 95). But this overstates things. The Establishment Clause does not forbid “any government action favorable to religion.” It does forbid the government from favoring religion. But the Court has vigorously approved of religious exemptions, for instance, which thread the needle—they are “favorable to religion,” in some sense, but they do not favor religion.³⁸Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 334 (1987) (“There is ample room under the Establishment Clause for ‘benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.’ ” (quoting Walz v. Tax Comm’n, 397 U.S. 664, 669 (1970))).
And despite the asymmetry between the clauses, the Establishment Clause applies equally to all religious denominations and even to the category of religion itself—the same rule that bars schools from advancing Christianity bars them from advancing any other religion, agnosticism, or atheism.

The book also implies the Court got the history of disestablishment wrong when it abandoned coercion. “Not every element in the historic establishments of religion involved coercion, but most did—and the closest analogy to the school prayer cases certainly did” (p. 95). The book is thinking again in terms of its six categories—the second category being “compulsory church attendance” (p. 17). The book notes how school prayer is analogous to religious worship: “The few seconds devoted to prayer at the beginning of the school day may not be a worship service, but it differs only in length and degree” (p. 93). Well put. But the book would say as long as the prayer isn’t coerced, there’s no real analogy to the second category (p. 92).

II. Some Criticisms

I will go to war with the six categories more fully in a bit. Before doing so, however, you can already see how everything depends on how one draws the specific boundaries of these categories and what one takes as legitimate analogies. Only when prayers are coerced, the book thinks, can they be truly analogous to laws requiring “compulsory church attendance” in the established church (p. 17). But the old laws requiring compulsory attendance did not care about social compulsion the way that the book does. Under the old laws, the state itself would punish you for nonattendance with fines and incarceration. Why should attendance that is merely the product of social compulsion count as analogous to that? Or, to push the other way, maybe the book’s categories should be broader rather than narrower. Instead of the category being “religious exercises put on by the state where attendance is compelled,” maybe it should simply be “religious exercises put on by the state”? If we framed the category that way, then school-sponsored religious exercises would be flatly unconstitutional, even if they were entirely noncoercive.

Anyway, the book praises the school-prayer cases but thinks the Court was wrong to drop coercion as a required element of Establishment Clause claims.³⁹See pp. 16–17.
The book sees this as leading the Court to be hostile (rather than neutral) toward religion. Congress passed the Equal Access Act, the book points out, because courts had stopped groups of students from engaging in prayer or Bible reading on their own (pp. 97–98). The book is right that this was a serious and unjustified overreading of the Establishment Clause. But why it pushes for a coercion standard is lost on me. Courts would have gotten all these cases right if they merely understood favoritism rightly—the government is not being partial to religion when it allows people to do religious stuff on the same terms that they can do other stuff.⁴⁰See Bd. of Educ. v. Mergens, 496 U.S. 226, 250 (1990) (“The proposition that schools do not endorse everything they fail to censor is not complicated.”).
Courts just needed to give Justice Scalia’s answer on this point: “Private religious speech cannot be subject to veto by those who see favoritism where there is none.”⁴¹Capitol Square Rev. & Advisory Bd. v. Pinette, 515 U.S. 753, 766 (1995) (Scalia, J., concurring).

It’s hard to tell sometimes whether the book is arguing for coercion (rather than favoritism) because it thinks coercion is the right standard or whether it is arguing for coercion as a fallback because it thinks the Court will inevitably overread the idea of favoritism. Take the book’s treatment of the endorsement test, which is scorched as severely as the Lemon test (pp. 104–05). Here the book says some curious things. Most people, I think, would say endorsement and favoritism are synonyms—the endorsement test forbids the government from favoring religion and offers a metric (the “reasonable observer”) for deciding when that has happened. But the book thinks you can endorse things without favoring or preferring them over others (p. 104). Chicago having a Polish festival endorses being Polish, but it’s no insult to the Dutch. National Pickle Day endorses pickles, but it’s not an attack on olives. Religious symbols should be viewed similarly, the book says. They might endorse religion, but they don’t favor it or disfavor the alternative to it.

I am not sure I see any difference between endorsement and favoritism. And even if a distinction could be drawn in other contexts, I don’t see how it could be drawn here, given how religions make exclusive and contradictory claims. I can like both pickles and olives; the Polish and Dutch can both be great peoples. But Christianity and atheism make contradictory claims; it is impossible for them both to be true, and it would be impossible for the government to say such a thing with a straight face. Now, to be sure, the government can do things like sponsor a Christian flag for a week, an atheist flag for a different week, and take turns for all other points of view.⁴²See Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022).
The equality of treatment undermines the notion that the government adopts any particular view. Now the book suggests this could also be true for something like a creche, as long as equal time is given to other religious symbols.⁴³See pp. 103–04.
But here the book takes on an entirely different tone—as if religious favoritism is actually the right test, and we just have to have an interior argument about what religious favoritism means.

III. Favoritism or Coercion?

Above I sketched out the rough contours of the book and some particular points of departure. Now I want to take up a broader issue—namely, the six categories. As mentioned earlier, everything depends on how one draws the specific boundaries of these categories. By tinkering with the boundaries, even in small ways, one could easily end up with a radically narrower or broader Establishment Clause.

Earlier we discussed this point in the context of the compulsory-attendance laws (category #2). But it is true for the categories more generally. For example, the book rightly sees laws that provide “financial support” to churches as a kind of law constitutive of a religious establishment (p. 16). But because of the way the book frames the category, laws that provide “financial support” to churches do not fall in the category as long the funding goes to a wider class of institutions defined in secular terms (pp. 16, 18).⁴⁴See p. 75. To be sure, the book does try to justify the boundaries it assigns to the categories. For example, with respect to the category of “financial support,” the book cites academic work tending to show programs funding higher education (including religious education) were not thought of as religious establishments. See p. 77 (citing, and discussing, Mark Storslee, Church Taxes and the Original Understanding of the Establishment Clause, 169 U. Pa. L. Rev. 111 (2020)).
Similarly, the book defines another category as the “use of church institutions for public functions” (p. 16). But, standing alone, that description might suggest, say, that the Establishment Clause forbids the state from using religious institutions in adoption-related services—a theory the authors would surely reject.⁴⁵Everyone assumes that the government can use religious groups in providing civil services. Indeed, the question last term was in which circumstances, if any, the Free Exercise Clause entitles religious organizations to religious exemptions in their role as providers of those services. See Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021).
Indeed, Justice Gorsuch apparently spotted this implication when, while deriving his theory of the Establishment Clause from McConnell’s earlier article on these topics, he trimmed this category down to laws “giving the established church a monopoly over a specific [public] function.”⁴⁶See Shurtleff, 142 S. Ct. at 1609 (Gorsuch, J., concurring) (emphasis added) (citation omitted).

These categorizations, however, are only aspects of a larger issue. The book seeks to derive the meaning of the Establishment Clause by examining what it meant to have a “religious establishment.” Yet, apart from that quick paragraph at the beginning, the book does not spend time talking about how the term “religious establishment” should be defined. To be sure, it has these six categories of laws that it associates with religious establishments. But why these six, and why should they be defined the precise way the book defines them? Without some kind of theory of what a “religious establishment” is—separate and apart from those six categories—it becomes hard to test the claim that these six categories are actually what constituted a religious establishment.

Take a few examples. Since 1558, the very year of the Uniformity Act, Parliament has opened sessions with prayer from a bishop in the Church of England.⁴⁷Prayers, U.K. Parliament, https://www.parliament.uk/about/how/business/prayers [perma.cc/LXW8-VXD5]. This continues to the present day. Norman Bonney explains current UK practice this way: “The strict formulae governing prayers in the UK parliament reflect the very essence of a state religion whose doctrines as expressed in the 39 Articles in 1569 were constructed and issued by the monarch for the state and society . . . . The present versions of prayers are thought to date from the reign of Charles II in the seventeenth century.” Norman Bonney, Established Religion, Parliamentary Devolution and New State Religion in the UK, 66 Parliamentary Affs. 425, 436 (2013).
If we take this as part of the English religious establishment (and why shouldn’t we?), then shouldn’t Congress’s chaplaincies also be considered part of a religious establishment? And if this so, doesn’t the Establishment Clause forbid them? Now, to be sure, all this is tongue-in-cheek. No one on the Supreme Court has any interest in invalidating the congressional chaplaincies, and the book’s authors would not be on board with such a conclusion.⁴⁸In the Supreme Court’s most recent case upholding a town’s legislative-prayer practice, even the dissenters acknowledged the constitutionality of legislative-prayer schemes when done right. Town of Greece v. Galloway, 572 U.S. 565, 616 (2014) (Kagan, J., dissenting).
But it is not clear why that conclusion does not naturally flow from the book’s premises and methodology.

The above example pushes toward a broader Establishment Clause, but one could argue it the other way too. Another of the six categories is laws restricting “political participation to members of the established church” (p. 17). The book sees these laws too as part of a religious establishment. This makes sense, but why exactly? Certainly it is true that English and colonial laws restricted political participation along religious lines—sometimes excluding Catholics, or excluding Jews, or limiting rights to Protestants or maybe even just members of a particular Protestant church (pp. 20–22). Certainly those laws were terrible, and certainly people complained about them. What, then, makes them part of a religious establishment? Maybe they just were awful laws.

Maybe it helps to ponder the difference between what religious establishments did and what religious establishments were. The book’s six categories of laws are things that religious establishments did, but they were not the religious establishment itself. One sees this in the old English law from the days of Queen Elizabeth I: Those who “absent[ed] themselves from the divine worship in the established church” were fined.⁴⁹4 William Blackstone, Commentaries *51–52.
Notice how this passage presumes a separation between the English religious establishment and its elements. The law refers to a pre-existing “established church”—one that would have existed even if there had never been any requirement of compelled attendance. As the established church, the Church of England coerced attendance. But that is not what made it the established church.

Again, let us return to the metaphor of a tree to describe religious establishments. The book’s six categories are the branches, but the trunk of the tree—the thing from which the branches grow and what connects them—is something else. What is it? For my money, the essence of religious establishment is the government deciding questions of religious truth. Government deciding religious truth was certainly something the Framers condemned—Madison’s Memorial and Remonstrance spends a lot of time attacking the idea “that the Civil Magistrate is a competent Judge of Religious truth.”⁵⁰ Madison, supra note 17, at 187. This belief was held by many folks and not just Madison—for discussion and citations, see generally Andrew Koppelman, Corruption of Religion and the Establishment Clause, 50 Wm. & Mary L. Rev. 1831, 1848–92 (2009).
And government deciding religious truth was what links the branches—all of the six categories logically depend on the government having first decided on the religious truth it seeks to advance.

Again, I am not sure the book really disagrees, given the way it describes religious establishments as existing for the “promotion and inculcation of a common set of beliefs through governmental authority” (p. 16). But this definition seems to open the door for an entirely different historical account of the Establishment Clause. If one starts with the idea that the government shall not decide religious questions, one could easily end with favoritism as a master principle of sorts, in which case the Supreme Court’s Establishment Clause jurisprudence looks less like a total disaster and more like a mixed bag.

Although this is not the place to fully develop these ideas, there is plenty of historical evidence for favoritism, as opposed to coercion, being the master principle. Religious establishments were still considered religious establishments even after they had lost their coercive elements, as in Virginia and South Carolina.⁵¹See Laycock, “Noncoercive” Support for Religion, supra note 22, at 41–48.
And noncoercive elements of establishment often provoked controversy and sometimes vicious fights. The nineteenth-century wars in the public schools between Protestants and Catholics reflected this; suddenly, the government could no longer even teach Christian truth (or what the prevailing Protestant consensus had been about Christian truth) without controversy.⁵²See John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 297–305 (2001).

And the same lesson happened three centuries earlier—back in the lesser-known sixteenth-century wars in England for religious control of Oxford and Cambridge. This is a current project of mine, but these wars merit close study for those interested in questions of religious establishment. Undoubtedly, the story involves religious coercion—most obviously in how Oxford and Cambridge required students to be Anglican.⁵³Oxford required subscription to the Thirty-Nine Articles on matriculation, starting in 1581. Cambridge required subscription on graduation, starting in 1616. These requirements lasted until 1871. For a rich description of their evolution, centered around a mid-nineteenth century controversy that came close to (but did not succeed in) ending them, see Michael Twaddle, The Oxford and Cambridge Admissions Controversy of 1834, Brit. J. Educ. Stud., Nov. 1966, at 45.
But putting coercion aside, the religious battles of the age were fought primarily over the religious truth that Oxford and Cambridge would advance. Every time the monarchy shifted even slightly in its religious views, it took a host of measures to push or force Oxford and Cambridge into making conforming religious changes.⁵⁴See Ceri Law, Contested Reformations in the University of Cambridge, 1535-1584 (2018); L.W.B. Brockliss, The University of Oxford ch. 6 (2016).
The practice of governments deciding religious truth was at the core of a religious establishment in the sixteenth century, in the nineteenth century, and now. And if one starts there, one ends with a different Establishment Clause.

Conclusion

The Establishment Clause is in transition. The once-regnant Lemon test now seems almost fully dead, and the endorsement test will likely be buried with it. The Court has not yet decided what will come next, but the most likely candidate has always been a coercion test of some stripe—and significant parts of this book push in that direction.

But to reduce the Establishment Clause to a ban on religious coercion loses something vital. While religious establishments certainly had coercive elements, those coercive elements flowed from (and were dependent on) something antecedent—namely, the government deciding religious truth. Religious establishments consisted of a number of different kinds of laws, but none of them were possible without the government first deciding on a religious vision that it would adopt and advance. There is a case for favoritism, rather than coercion, being the essence of religious establishment. As the Supreme Court reconsiders the Establishment Clause, it should keep that in mind.

*      Professor of Law, Wayne State University Law School. Thanks to Will Baude, Doug Laycock, Marc DeGirolami, Steve Smith, Nelson Tebbe, and Micah Schwartzman for comments. Special thanks to Julia DeLapp for phenomenal research assistance. And special thanks to Chad Flanders for reading multiple drafts. By way of disclosure, Michael McConnell and I are co-authors with Thomas Berg of a casebook on church-state issues. Michael W. McConnell, Thomas C. Berg & Christopher C. Lund, Religion and the Constitution (5th ed. 2022).