Christopher C. Lund (Wayne State University Law Schoo) has posted Favoritism, Coercion, and the Establishment Clause (Michigan Law Review, Vol. 122, p. 1303, 2025) (18 pages) on SSRN. Here is the abstract:
This piece reviews Nathan Chapman and Michael McConnell’s recent book, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience [ed.: Oxford Univ. Press 2023, here]. The book is a thoroughgoing examination of the Establishment Clause, aimed at retrieving its original meaning and, on that basis, critiquing the Supreme Court’s jurisprudence from the Warren Court on.
Chapman and McConnell’s book is a great achievement, especially in its detailed historical account of established churches in England and in the colonies, as well as their eventual decline. It is over the implications of that history, however, where questions and disputes will arise.
Chapman and McConnell see the Establishment Clause, as originally conceived, as standing against six different categories of laws—those involving (1) control over the doctrine, governance, and personnel of churches, (2) compulsory attendance in the established church; (3) compelled financial support of the established church; (4) prohibitions on worship outside the established church ; (5) use of the established church for public functions; and (6) restriction of political participation to members of the established church. Rightly understood, Chapman and McConnell argue, the Establishment Clause forbids only these kinds of laws and their modern-day equivalents—which leads them to see the Establishment Clause as a relevantly narrow provision forbidding only coercion.
Yet their account can be challenged. For one thing, because Chapman and McConnell are working without a theory of what a “religious establishment” is—separate and apart from the six categories—it becomes hard to test the claim that these six categories are actually what constituted a religious establishment. Moreover, history does not really resolve the precise boundaries of the six categories—and even slightly broader categories could lead to a much broader conception of the Establishment Clause.
This review ends by faithfully taking Chapman and McConnell’s history but then going in a different conceptual direction. If we think of 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. But if the essence of establishment is the government deciding religious truth, then the essence of disestablishment is the government refusing to decide religious truth, leading to an Establishment Clause best thought of as a broad prohibition of religious favoritism rather than a narrow prohibition of religious coercion.
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