The Supreme Court over the last two decades has repeatedly strengthened the expanded reach of the Free Exercise and Free Speech Clauses to protect the religious. At the same time, the Court has moved to reduce the weight of the Establishment Clause as a counterbalance to the reach and protections of these other clauses—a counterbalance that it obtained through a “strict separationist” reading of the Establishment Clause.

Professor Michael McConnell, through his writings and advocacy, has done perhaps more than any other single individual to move the Supreme Court from this “strict separationist” reading of the Establishment Clause to one based on the historical incidents of establishments of religion. His latest book, Agreeing to Disagree, written with Professor Nathan Chapman, reviewed favorably in these pages, continues and summarizes his efforts and again urges courts, when interpreting the Establishment Clause, to do so with its historical context foremost in mind. It seems that he has largely won the day, as the Supreme Court, in 2022 in Kennedy v. Bremerton School District, embraced the historical approach and rebuffed the Lemon test.

It is somewhat ironic, then, that Chapman and McConnell, based on the clause’s history and original purpose, do not call on the Supreme Court to disincorporate the clause. As they point out, when the Founders forbade Congress to “make any law respecting an establishment of religion,” they formulated the clause with a twofold purpose: first, it stopped the national government from setting up a religious establishment that would be binding on the states, and, second, it left the states free to establish religion as they desired without risk of federal interference. In light of this second objective of the clause, incorporation of the clause to limit what states could do with respect to religion is anomalous at best, as Justice Stewart observed in dissent in the 1963 case of School District of Abington Township v. Schempp: “It is not without irony that a constitutional provision evidently designed to leave the States free to go their own way should now have become a restriction upon their autonomy.” Justice Thomas has repeatedly called out this disconnect with the historical purpose of the clause and requested a reconsideration of its incorporation against the states by the Court. Commentators, including those writing here, have called for its disincorporation.

Given the trajectory the Court has taken on the Establishment Clause, the robust protection of religion it has found in the Speech and Free Exercise Clause, and the fact that all states have anti-establishment provisions in their own constitutions, the time may be ripe for disincorporating.

Incorporation is undertaken by way of the Fourteenth Amendment, and that amendment protects fundamental, individual rights. Many, but not all, of the Bill of Rights amendments do the same, including the Free Speech and Free Exercise Clauses. Other parts of the Bill of Rights, though, do not, but, rather, are “federalist” or “structural” or “jurisdictional” provisions, setting the proper spheres of authority for the national and state governments. The Establishment Clause is of this latter type. It does not set out a right for an individual to decide whether to establish a religion; it is not individuals who do that, but governments. Chapman and McConnell concede that, when viewed as a jurisdictional provision, it makes no sense to incorporate it.

However, Chapman and McConnell applaud certain results of cases decided by application of an incorporated Establishment Clause. In particular, they regard the early post-incorporation cases of Engel v. Vitale (1962) and Schempp (1963), which struck down under the Establishment Clause state-sponsored prayer and Bible reading in public schools, to be the Court’s “finest hour.” They specify that an incorporated Establishment Clause has protected individual rights not to have the government “compel religious attendance or support” or “control religious doctrine or personnel.” The historical problem, though, is that the Establishment Clause was designed to permit state governments to achieve exactly those purposes. The interpretive problem for Fourteenth Amendment purposes is that all structural or jurisdictional provisions ultimately have some effect on individuals; that does not convert them into provisions dealing with individual rights suitable for incorporation. The Establishment Clause, unlike the other First Amendment provisions, is not based on any freestanding, fundamental, personal freedoms.

Putting interpretative principles to one side, the Supreme Court has given more robust protections to individuals under the Free Exercise and Free Speech Clauses, protections that overlap with those that McConnell and Chapman point out have also been protected by an incorporated Establishment Clause. Starting with the school prayer and Bible reading cases, the Supreme Court has recently instructed that the problem in those cases was that the state compelled attendance at a religious ceremony. Thus, as the Court noted in Kennedy, the graduation prayer of Lee v. Weisman and the football game prayer of Santa Fe Independent School District v. Doe, as well as Engel and Schempp, all involved compelling students to attend a state-sponsored religious exercise, which violated the Free Exercise Clause. Similarly, the Court in West Virginia State Board of Education v. Barnette (1943) held that requiring students to salute the flag and recite the Pledge of Allegiance was compelled speech in violation of the Free Speech Clause, a precedent the Supreme Court extended to the workplace last year in 303 Creative LLC v. Elenis (2023). 

Moreover, the Court has recently developed strong protections against discrimination based on religious status and practice, all under the Free Exercise Clause. Beginning with Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) and continuing in Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022), it disallowed the state from barring a school from receiving a public benefit solely because of its religious nature or practice. In Fulton v. Philadelphia (2021), it prohibited the city from refusing to allow Catholic Social Services to continue to serve foster care needs because of its religious beliefs about same-sex marriage when the city could make exceptions for others, in its discretion, for perceived violations of its anti-discrimination laws. And in Tandon v. Newsom (2021) and Roman Catholic Diocese of Brooklyn v. Cuomo (2020), the Court instructed, in the context of Covid restrictions, that governments may not treat comparable secular activity more favorably than religious exercises without violating the Free Exercise Clause.

Nor is there any concern that, with disincorporation of the Establishment Clause, the states could establish church doctrine or regulate ministerial employees, the other types of individual rights that Chapman and McConnell identify as being protected by the Establishment Clause cases. While the Supreme Court in Hosanna-Tabor Evangelical Church and School v. EEOC (2012) supported the ministerial exception in part by the incorporated Establishment Clause, it also supported it by the properly incorporated Free Exercise Clause, and that support is fully sufficient. The ministerial exception is a subset of the church autonomy doctrine; that doctrine predated incorporation of the Establishment Clause, and its constitutional footing is firmly placed in the Free Exercise Clause.

The establishments the states had when they ratified the First Amendment have all been dismantled. All states now have anti-establishment provisions in their constitutions. The types of cases that would be returned to the states for consideration under state law if the Supreme Court disincorporated the Establishment Clause would basically be those that did not involve compulsion.

The Supreme Court in Kennedy signaled that simply being exposed to the religious speech or exercise of another, absent coercion, is not a federal constitutional violation, but part and parcel of living in a pluralistic society: “Respect for religious expressions is indispensable to life in a free and diverse Republic.” The “offended observer” cases would, thus, be handed back to the states for their resolution under their own law. Examples would include the propriety of prayer at public meetings, nativity scenes on the city square, Ten Commandments displays at the county courthouse, and memorial crosses in a public park or cemetery, all issues that have clogged the federal courts for decades.

It is certainly conceivable that, in some “offended observer” situations, different states would reach different conclusions in similar cases—but that is exactly the way the Establishment Clause intended our federal system to operate. More localized decision-making brings with it the promise of regulation more finely tuned to those directly involved, something that cannot be done on a national, one-size-fits-all basis. At the same time, the Bill of Rights’ personal guarantees of Free Speech, Free Exercise, and Free Assembly, all properly incorporated through the Fourteenth Amendment, will provide a protective buffer for individuals against compelled and discriminatory state action infringing on their religious practice, speech, and association. With those protections now firmly in place, the path is now clearer than ever for the Court to correct the anomaly of its incorporation of the Establishment Clause.