Talks with Authors: Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience

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Chayila Kleist:  Hello and welcome to this Federalist Society webinar call. Today, October 5, 2023, we’re delighted to host a Talks with Authors webinar discussing the recently published Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience. My name is Chayila Kleist, and I’m an assistant director of practice groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call as The Federalist Society takes no position on particular legal or public policy issues.

 

Now, in the interest of time, I’ll keep my introductions of our guests today brief. Though, if you’d like to know more about any of them, you can access their impressive full bios at fedsoc.org. Today we are fortunate to have with us Professor Michael McConnell who’s the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School and a senior fellow at the Hoover Institution. Professor McConnell has held chaired professorships at the University of Chicago and the University of Utah and visiting professorships at Harvard and NYU.

 

Outside the academic space from 2002 to the summer of 2009 he served as the circuit judge for the United States Court of Appeals for the Tenth Circuit. He has published widely in the fields of constitutional law, theory, especially church and state, equal protection, and the Founding. In the past decade, his work has often been cited in opinions of the Supreme Court. He is co-editor of three books, and he’s the author of the book we’ll be discussing today, Agreeing to Disagree.

 

Also joining us today is Dr. Vincent Phillip Munoz, who’s the Tocqueville Professor of Political Science and Concurrent Professor of Law at the University of Notre Dame. Dr. Munoz writes and teaches across the fields of constitutional law, American politics, and political philosophy with a focus on religious liberty and the American founding. He won the national endowment for the humanities fellowship in support of his most recent book, Religious Liberty and the American Founding: Natural Rights and Original Meanings of the First Amendment Religion Clauses, published in 2022 by the University of Chicago Press.

 

And if you’re interested in that, we did have a talks with authors on that book last year. And you can find that recording on the FedSoc website to be watched of course after this webinar. Articles relating to that project have appeared in the American Political Science Review, the Harvard Journal of Law and Public Policy, Notre Dame Law Review, and the University of Pennsylvania’s Journal of Constitutional Law. Finally, joining us today as our moderator for today’s conversation is Adam Griffin, who is currently a constitutional law fellow at the Pacific Legal Foundation. Before coming to PLF, Mr. Griffin served as a law clerk in the United States District Court for the Eastern District of North Carolina. And before that, he spent two years as the inaugural Liberty in Law Fellow at the Institute for Justice.

 

And I can leave it there. One last note, throughout the panel, if our audience has any questions, please submit them via the question and answer feature found at the bottom of your Zoom screens so that we will have access to them when we get to that portion of today’s webinar. With that, thank you all for joining us today. Mr. Griffin, the floor is yours.

 

Adam Griffin:  Thank you so much, Chayila, for the great introduction. I’ll be very brief. We’re here today to discuss Professor Michael McConnell and his coauthor Nathaniel Chapman’s book, Agreeing to Disagree. The book covers the history and tradition of the establishment clause, its original meaning, and the larger principle undergirding the provision. The book then surveys leading cases in the Establishment Clause jurisprudence through the lens of the book’s thesis on text, history and tradition of original meaning, and the animating idea behind the clause. Chayila did a wonderful job giving the introductions for the speakers’ bios, and so I’ll turn it over to Professor McConnell.

 

Prof. Michael W. McConnell:  So thank you very much for having me here this morning. This book was a long time in the making, which actually made a difference in this case because, between the time I started working on this and brought Nathan Chapman in as my coauthor and it came to fruition, the United States Supreme Court were very busy. And I don’t think that there is any area of constitutional law where there has been a more dramatic U-turn in doctrine.

 

So the book started as mostly a criticism of the Supreme Court’s cases and doctrine, and by the time it came out, it became largely an explanation and support -- not completely. We don’t agree with everything they’ve done or everything that they have said. But the Establishment Clause has been corrected in many ways, so it’s quite a different book than I had originally envisioned.

 

Adam Griffin:  So can you explain sort of the thesis of the book and sort of what your main thesis of the book is and how you came to that conclusion, what evidence you used to support that main thesis?

 

Prof. Michael W. McConnell:  So the main thesis is based upon a careful look at what establishment of religion actually was at the time of the Founding. And this is one of the few clauses of the Constitution, of the Bill of Rights, which is a repudiation of the British legal tradition. A lot of the Bill of Rights amounts to embedding ideas of rights that had become important under the British common law, but the Establishment Clause is not like that. It is a rejection of the prior British practice.

 

And it’s our contention that maybe because it’s been so long that the Supreme Court when it finally got around to interpreting the Establishment Clause didn’t really understand what it was about. And the Court has frequently said that the Establishment Clause is in tension—that’s the word that they use—with the Free Exercise Clause. So in a sense the Free Exercise Clause is protective of religion and religious liberty, and the Establishment Clause is designed to keep religion at a distance, to separate religion from the public sphere.

 

But at the Founding, these two principles were understood to be extremely closely intertwined. The very same people advocated for the Establishment Clause and for the Free Exercise Clause. They did not see them in tension. And the key here is to understand that the Establishment Clause is not about keeping religion away from the public sphere. It’s about keeping government away from control of religion. And that control can either be hostile or supportive.

 

So the established church in the legal term in the British legal system was the church by law established. That was the Church of England. Under the Supremacy Act, the government, technically the monarch, actually controlled the church, could determine its doctrines and personnel. So the kings and queens -- as they still do. They still appoint the high prelates of the church. They appoint the Archbishop of Canterbury. The articles of faith of the Church of England were adopted as a statute by Parliament.

 

The mode of worship, the Book of Common Prayer, beautiful though it is, was nonetheless an act of Parliament. And it contained within it the use of a particular translation of the Bible, which we call the King James Bible. But if you actually open it up to its title page you’ll see it says the real title is the Authorized Version. Who authorized it? It’s the government of Britain. And the government hired and fired the ministers in the Church of England in the United States.

And in the United States in order to be a minister—I’m talking now colonial times—ministers had to go in London in person and swear an oath of loyalty to the king by the Bishop of London. So the government kept a very tight control over the church.

 

In addition to that it was a coercive instrument. So people were required to go to church. You got fined criminally if you didn’t go to church. We cite a study in Virginia in the mid-18^th century in which the crime of not going to church was either the first or the second most commonly prosecuted crime in the state. You had to contribute money to the church, and this was enforced just like any other tax. And the establishment also kept out competitors.

 

So under the Uniformity Acts in Britain, no one else, no one who was not adhering to the Book of Common Prayer and the forms of the Church of England, could conduct a public worship service. Now, I’ll make clear they could do private worship services. So a number of noble families were Catholic, and they often employed priests in their family who would conduct private services. But public worship was limited to the Church of England.

 

And in the colonies, the colonial governors insisted that ministers be licensed. And in Virginia -- actually, the Baptists were cantankerous and obstreperous and stubborn. And even if they could be licensed, they refused to be because they thought it was none of the government’s business. And this actually was James Madison’s first confrontation with the issues of religious liberty.

 

He wrote a letter shortly after he returned to Virginia from college in New Jersey. He wrote a letter to his college friend, William Bradford, in which he described that five or six ministers—these are Baptist ministers—were in jail in the county next door. And they were in jail for preaching without a license. And he was absolutely infuriated by that.

 

So the establishment was -- the idea that the essence of establishment is favoring religion is incomplete at best and largely misleading. Yes, there was some coercion to participate and support in the church. That’s an important part of the establishment. And yes, the establishment favored one particular church over all of the others. But it was really an instrument of social control.

 

And why? Well, it’s pretty obvious that the Church of England was being used as a means of inculcating in the people the idea of obedience to the authorities and to the monarch. This is actually even one of the 39 articles of faith in the Church of England. So this was not a theocracy, meaning religious control over the government. It was the opposite. It was government control of religion.

 

And our founders wanted nothing of that, and it was the most enthusiastic religious people like the Baptists who were the most energetic advocates of getting rid of the establishment. It was because they believed that the establishment was both -- it offended their deep conviction that religion was a matter between people and god and not to be mediated through the authorities of the government. But they also believed that it was actually harmful to religion to have this kind of an association with the government.

 

Dr. Vincent Phillip Munoz:  Adam, if I can jump in here. What Professor McConnell’s been talking about is the first chapter of the book -- first substantive chapter. And it’s just phenomenal, Michael, if I could say. We haven’t talked about the book yet.

 

It summarizes two centuries of history in, I don’t know, about 20 pages. And I think it’s going to be the chapter we all rely on. It’s a great service and contribution that Mike and Nathan have provided on doing all the history to say this is what an establishment was in England. This is the obvious background of those who drafted the First Amendment. Whether they had the same meaning of establishment is hard to tell, but it’s clearly the historical background that informs exactly why we have a commitment to religious freedom in the Constitution.

 

And that background just has not been known. Maybe known by historians. Maybe known by scholars but certainly not sufficiently known by those doing the jurisprudence. I’m not a British historian, but it’s so accessible, hits all the highlights of what we need to know, and does so in such an easy and accessible manner. I think it’s a real highlight of the book and exactly the right place to start off this morning.

 

Prof. Michael W. McConnell:  Thank you for those words, Phillip.

 

Adam Griffin:  Thank you for that, Professor Munoz. So the next two -- I have sort of two areas where I think we could go next. And I also want to let everyone know that there is a Q&A feature at the bottom of the talk, and so if you have any questions throughout, please put them in the Q&A. And we’ll try to get them either throughout, or at the end we’ll have time to field those questions.

 

So the two areas that I wanted to go to are the elements of an establishment clause -- and Professor McConnell’s survey of the history does a great job of building up to this. And then after the elements of an establishment, what an establishment is, moving to the specific areas and then Professor Munoz bringing in what you think about these elements of an establishment, whether it was defined or not, and then talking about where we agree and where we disagree on the specific areas.

 

So the elements of the clause is basically -- and you summarize this is “An establishment is government control over doctrine, governance, and personnel of the church; compulsory church attendance; compulsory 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.” Justice Thomas and some other leading originalists have signaled that the Establishment Clause is really more of a federalism or jurisdictional provision, that it doesn’t apply against the states. And I’m kind of wondering where the daylight is on this, if any of these elements would not be a violation of the Free Exercise Clause also.

 

And maybe this plays into your view about free exercise and establishment being mutually reinforcing. But are any of these elements or anything that the Establishment Clause prohibits not prohibited by the Free Exercise Clause?

 

Prof. Michael W. McConnell:  Is that question to me?

 

Adam Griffin:  Sure. And then, Professor Munoz, if you want to bring in contrasting view of the Establishment Clause and where you agree and disagree. So do you think there’s anything that the Establishment Clause prohibits that the free exercise clause does not also prohibit?

 

Prof. Michael W. McConnell:  So I do think that the prohibitions on religious practice outside of the church is the core of the Free Exercise Clause. So restrictions on free exercise were part and parcel of the establishment of religion. Now, whether one might be able to shoehorn the other aspects of disestablishment into free exercise, I don’t know. I’m not saying it’s impossible because the two provisions were very closely related. And the founders didn’t really distinguish between them.

 

And so when you look at state constitutions, for example, you will see things that we would regard as free exercise juxtaposed with things that we would talk about as elements of disestablishment. And it didn’t make any difference for them which of these two categories they were under. But I think the essence of free exercise, maybe not the entirety of it, but the essence of free exercise has to do with compelling or preventing people from acting in accordance with conscience. And the disestablishment was less interested in whether its compulsions were a violation of conscience.

 

So for example, Massachusetts required people -- this is even the state of Massachusetts, not just the colony of Massachusetts. It required people to attend church if they could conscientiously attend. And this is just one example. But the defenders of that system said we’re not compelling conscience. We’re not violating somebody’s free exercise of religion because if you have a problem with attending the church, you don’t have to do it. We’re really just preventing people from being lazy and uninterested.

 

The way I sometimes put it is they didn’t want people to be sitting home on Sunday morning doing The New York Times crossword puzzle. And in their understanding, establishment went beyond that. And in fact one of the problems that they had with some of the provisions of establishment is it encouraged hypocrisy just as much as it did coercing conscience.

 

Dr. Vincent Phillip Munoz:  Adam, can I get a question in here for Michael?

 

Adam Griffin:  Please do.

 

Dr. Vincent Phillip Munoz:  You mentioned the six elements of establishment. Michael’s too modest to say this, but I’ll say it. This book has already influenced actually Supreme Court jurisprudence. Justice Gorsuch in the Shurtleff case, a case from -- the flagpole case in Massachusetts, relies on Professor McConnell’s earlier work, which was also in this book. So this book has already had an impact on Supreme Court jurisprudence and undoubtedly will have further impact.

 

My question, Michael, is you have these six elements of establishment that you derive from English history and then six elements of disestablishment that you derive from early American history, from the process of disestablishment. And they’re similar lists, but they’re not exactly the same, some overlap but not complete overlap. And it’s an interesting mythological move.

 

You and Nathan say we ought to interpret the Establishment Clause in light of the process of disestablishment and these disestablishment elements. An originalist might say, well, why should we go through the process of disestablishment over the first 50 years of American history, 40 years after the Constitution? Why not just stick to the original establishment elements that you discover? Isn’t the meaning of the Constitution fixed in 1791? That’s the fixation thesis. Why does what Massachusetts does in 1820 or 1830 -- why should that matter to our understanding of the original meaning of the Establishment Clause?

 

Prof. Michael W. McConnell:  So our methodology is this: that the First Amendment applied only to the federal government. Justice Thomas is right about that, but that’s not controversial. No one thinks that the First Amendment applied to the -- well, no one is wrong. But only a very small group think that the Bill of Rights at all and the First Amendment applied to the states prior to the Fourteenth Amendment.

 

After all, the very first words of the First Amendment are “Congress shall make no law.” And it’s pretty clear from the debates that that was a deliberate decision that the federal government -- there would be no establishment at the federal level, and the federal government would have no authority to disestablish or meddle with the establishments that then existed at the state level. But there’s actually very little federal material about what an establishment is.

 

Madison makes several revealing remarks on the floor of Congress. So it’s not nothing, but the historical sources at the federal level are fairly sparse. And that’s, I think, because they were referring to what was then a familiar idea. That is they knew what establishments were. It wasn’t a point of dispute.

 

There were establishments in colonial America as well as in Britain, and not just the Church of England establishment which prevailed in most of the south and parts of New York. But in New England there was a congregationalist establishment that’s interestingly different from the C of E establishment. The congregationalist establishment was localized so that each town would vote on what minister to call and thus what religion they would have established. And rather than inculcating the idea of obedience to the monarch, the congregationalist establishment was much more engaged in inculcating the virtues that they thought were necessary for a republican citizenship. So the civic function of the church was to build a kind of virtue, a virtue built around self-sacrifice and respect for others and respect for the law and honest and hard work and thrift and so forth.

 

So the Framers of the federal First Amendment were -- they wanted to keep the federal government out of it. They wanted to leave this to the states. And so in order to know what an establishment was you need to look at where the establishments were. There was never an establishment at the federal level. So you look at the states.

 

And it would be fine just to look at what was an establishment, but a lot of the discussion of what an establishment was and what they were trying to achieve by disestablishing takes place as they’re dismantling the establishment. And that process begins in 1776. All but three of the colonies had some kind of a pretty established establishment, a pretty solid establishment.

 

Starting in 1776 with the earliest state constitutions but extending all the way until 1833 each of the original states went through a debate as to would they disestablish, would they continue their establishment? What would they do about it? And in the course of that, we learn a great deal about what they thought an establishment was.

 

So just one example of this, the Supreme Court has believed that there’s an establishment principle against the government providing financial support even to the civic institutions that are associated with the church, such as schools especially, but in principle this would extend to things like hospitals and orphanages and anything else. So the Supreme Court has thought that the principle was no money can go from the Treasury into any institution that is controlled by religious groups or for which religious teachings are propagated. But we know to a fair degree of certainty that that isn’t how the framing generation understood this.

 

They understood that people cannot be required to contribute to the church or to religion. And that’s because they thought this was a sacred obligation. This is a religious obligation and that the government should not step in and coerce what is in fact something that’s supposed to be between you and your god. But the very same people who insisted upon that, who insisted upon ending mandatory contributions had no problem with state legislatures appropriating money to colleges which were denominational.

 

Most of the colleges in the early years were denominational. Harvard and Yale and William and Mary and University of Pennsylvania, all of them were religious in an important sense. But they did not think that support for education was part of the establishment. And even the Baptists, who are the most insistent on disestablishment, Baptist colleges were receiving money. So when you see what they thought they needed to do in order to disestablish, it makes it much more clear what the term “establishment” meant to people around this time.

 

Can I give just one more example? I’m sorry I’m talking so much. But one more example is that each of the states that had a full bore establishment of religious and then disestablished through state constitutional amendment, all of them specified that religious societies had the right to choose for themselves whom their leaders would be. And this principle then becomes important in Supreme Court cases, recently the Hosanna-Tabor case and ensuing cases.

 

And being able to choose your own minister wasn’t just free exercise and thus governed by the fairly narrow rules of Employment Division v. Smith, even if it’s pursuant to a neutral and generally applicable law. This is a type of separation between church and state. The government does not have any role in the selection of clergy or the leaders of the church, and we know that by virtue of looking at the disestablishment moves that took place in the various states.

 

Adam Griffin:  Fantastic. Very interesting. Thank you. So we have eight questions in the queue. We’ll try to spend like the last 15 or so minutes, and I don’t know if we can go over a little bit if there is a lot of Q&A. I wanted to jump forward before we jump to Q&A and talk about some of the issues.

 

The second part of the book is modern controversies. And so we’ve gone through this history. And also, Professor Munoz, you as well have a section at the end of your book about adjudication of the Establishment Clause. And I’m wondering if we could succinctly in maybe— maybe it’s a bit of a rapid fire round. And then we’ll also see if anybody has questions about them—go through the modern controversies in Agreeing to Disagree and see what your position is, Professor McConnell, and then, Professor Munoz, what your position is.

 

You kind of have this helpful chart in yours, Professor Munoz, where you say here’s my view, and under this it’s prohibited; under this it’s allows. And then here’s Scalia, Thomas, Kennedy, O’Connor. Here’s their views and how they match up to mine. Maybe we could do something similar with here’s Professor McConnell’s view and here’s how it matches up to mine and do we agree or do we disagree and why. So the first one is the rise and fall of the lemon test. I kind of take it that neither of you think the lemon test is the right test for the Establishment Clause. Am I right about that?

 

Prof. Michael W. McConnell:  Yes.

 

Dr. Vincent Phillip Munoz:  Never was, never will be.

 

Adam Griffin:  Multifactor, open ended balancing without a concrete rule. The accommodation of religious exercise -- so this chapter was -- the accommodation of religious exercise chapter was about the free exercise exceptions and connections between that and the Establishment Clause. Professor McConnell, do you want to briefly talk about your view of accommodations of religious exercise in the book, and then, Professor Munoz, your position on the subject?

 

Prof. Michael W. McConnell: So the accommodation question arises when there is a law generally applicable to most of society but happens to conflict with the religious convictions of a particular group. Obviously, this is a religious minority because society wouldn’t have a generally applicable law that’s contrary to what the majority thinks is right. So an example would be conscientious objection from compulsory military service or compulsory service on juries. Or a modern example is the Native American church using a controlled substance as part of its worship services.

 

And a very difficult question on which Phillip and I have disagreed is whether the Free Exercise Clause constitutionally compels the government to carve out exceptions in some of these cases. And I say yes, and he says no. But for Establishment Clause purposes the question is what happens when the political branches choose to carve out an exception.

 

And this is not uncommon. In fact, our statute books are riddled with accommodations of religion in any number of contexts. It’s really just a bewildering variety of situations. And the argument in this chapter of our book is that no one at the Founding would have regarded or did regard this kind of provision as an establishment. In fact, it probably would’ve shocked them to even think of this because establishments were designed to require everyone to conform to a single national will.

 

Accommodations are carve outs to enable people to dissent and practice their dissent from what is the national will. Accommodations are by their nature antiestablishment. They promote diversity. They enable people to do things that the society as a whole disapproves of. And they don’t do this in every case. They do this when the Legislature or the Executive makes the judgment that an exception is not going to do serious damage to the common good.

 

So that’s our argument in this chapter. Now, the Supreme Court has come around to that, but up until, say, the 1980s courts were saying, oh, no, accommodations are an establishment because they favor religion over non religion. But that’s not the right question.

 

Dr. Vincent Phillip Munoz:  Yeah. I think Michael’s exactly right on that, both the historical matter and the jurisprudential matter. Let me get a quick question in, Michael, to you on this accommodation chapter and then the next chapter on -- I think maybe those who have not read the book will find most interesting your discussion of prayer in public schools. So the type of Establishment Clause accommodation issue might be government chaplains or military chaplains or legislative chaplains. And the argument for them would be if they’re not required by the Free Exercise Clause, they’re consistent with the Establishment Clause insofar as Professor McConnell understands the Establishment Clause as the purpose is to facilitate religious diversity, religious choice, religious autonomy.

 

Chaplains, especially for someone in the military, that furthers the purpose of facilitating religious autonomy. Moreover, the government appointing military chaplains doesn’t interfere with churches having control over their own ministers. It doesn’t interfere with church autonomy.

 

But I wonder if a government chaplain -- so a government chaplain might not violate the principles of disestablishment, but would it violate the principles of establishment? The hallmark of an establishment is government appointing chaplains, selecting who is and who isn’t a religious minister. Is that an area where if we look at disestablishment we get actually a different result than if we look at what was considered an establishment?

 

Prof. Michael W. McConnell:  That’s a great question because chaplains go back to the very Founding. In fact even before the Constitution, Washington had chaplains in the Revolutionary army. And on its face, chaplains seem to violate practically every principle.

 

The government is choosing a minister. Well, they can’t do that. The government buys the hymn book and the Bibles to use in the services. They can’t do that. The government builds the chapel on the base. Hey, they can’t do that. In ordinary civilian life they can’t do that. But I think this is an example of where the necessity for government involvement comes from government control over the entire atmosphere, the entire milieu.

 

So in the military, in prisons, hospitals sometimes, if the government doesn’t engage in this, there can be no free exercise of religion. And this is an uncomfortable problem. And actually the chaplaincy raises a number of interesting, difficult, thorny downstream specific questions like, for example, one of the presidents forbade chaplains from speaking out against abortion on sanctity of life Sunday. Can they do that? Can they tell chaplains what to -- and how do you choose them?

 

The military has an elaborate scheme under which it chooses chaplains in accordance with the percentages of various denominations in the population as a whole. But the population as a whole is rather different than the military population. Which how do you choose one of these? It presents all kinds of problems, but the alternative of no chaplains would be worse because it would mean that we draft people into the army. And we send them off to places where there aren’t any churches and where they’re isolated and where they won’t be able to engage in free exercise of religion at all. So that’s really the choice.

 

Dr. Vincent Phillip Munoz:  Adam, can I get a question in on what I think is the next chapter in the book --

 

Adam Griffin:  Sure.

 

Dr. Vincent Phillip Munoz:  -- where Professor McConnell and Chapman deal with prayer in public schools? And this is an area where we reached the same result. We both for different reasons think prayer in public school, at least certain forms of prayer, teacher directed prayer, administered prayer, government written prayers are unconstitutional. I suspect this is an area where our legal friends, both my legal friends and Professor McConnell’s legal friends, disagree with us. They think we’re wrong on this.

 

So two questions for you, Michael. Why do you think government written prayers -- let’s take the Regents prayer case from the 60s -- are unconstitutional? And then secondly, you have multiple disestablishment elements. One of them is denominational equality. Another is free exercise or anti-coercion principle, liberty of conscience anti-coercion principle. But my question is -- so first question, why is prayer in public school unconstitutional?

 

Secondly, which element do you use? Because one might say, look, denominationally, if we used denominational equality, you could have prayer in public school as long as everyone was able to pray in their own way or one type of prayer wasn’t always fostered. So depending on which element you use, you might get a different result. So of your various disestablishment elements, how do we decide which element to use in which type of case?

 

Prof. Michael W. McConnell:  The last question first, we don’t see these elements as being exclusive principles of law. We’ve identified six. That’s because these seem to be the dominate elements. We’re not aware of any others. But it wouldn’t astonish me if there’s a seventh. There’s nothing magic about the number of elements. And there’s no need to pigeonhole into one or another. You look at a particular practice, and you apply these principles that come out of these elements to them. And you see where you stand.

 

Dr. Vincent Phillip Munoz:  So what if element -- if one element would say the practice is constitutional and another element would say it’s unconstitutional, which one do you choose?

 

Prof. Michael W. McConnell:  Well, I’ve never been asked that before. But I think my off the cuff reaction without -- I’d want to think through a number of examples. But I think the answer is if it hits any of the elements of an establishment, then it’s an establishment and is not permitted. The fact that it satisfies others would not whitewash it.

 

The key thing about school prayer is we think the Supreme Court got it right, but the reason is not what they said. They said that coercion has nothing to do with it in the opinion, and we think that’s wrong. We think the important point is that public schools are in fact coercive environments. And even if a student isn’t going to be formally punished for refusing to participate in the prayer that the whole resistance to teacher authority is contrary to the spirit of the school.

 

And would it be possible to have a kind of school prayer arrangement that would be where everybody could have a prayer of their own? It’s pretty hard to imagine how that works in a classroom. But much later in the 1980s that sort of took place in the form of student led clubs.

 

Most schools you can have the archery club and the chess club and I don’t know what all clubs they are, young democrats, various clubs that the students form. And they get to meet either after school or during non-curriculum time during school. And many students wanted to form religious clubs like for prayer and Bible study.

 

And a lot of school districts said, oh, no, you can’t do that because there can’t be prayer in the schools. And every single court of appeals where this issue went up agreed with the schools. They said no, students, you can’t have Bible study clubs in public schools. That would be an establishment of religion.

 

This was actually in terms of a real, live ongoing controversy the first of my personal things that I got involved in because that just seemed so wrong to me that if everybody else -- if you can have a club for everything else, why not this? It’s not an establishment of religion to allow people to meet and pray and study the Bible on public property. Even Jefferson did that. And there’s nothing coercive about these clubs. So that is in a sense prayer in the schools, but I think not only not forbidden but actually constitutionally protected.

 

Adam Griffin:  Thank you. Professor Munoz, do you want to choose a few questions from the queue? And you and McConnell can tee those up, or I’m happy to choose some. I can choose one and if you want to look at some --

 

Dr. Vincent Phillip Munoz:  No. Go ahead. Let me use one.

 

Adam Griffin:  Okay.

 

Dr. Vincent Phillip Munoz:  There’s a couple of questions about incorporation. This is really a lawyer’s question here. I’m not a lawyer -- but a textual question.

 

Prof. Michael W. McConnell:  He plays one on webinars.

 

Dr. Vincent Phillip Munoz: Yeah, yeah. The Fourteenth Amendment, the Privileges and Immunities Clause, which I really like actually that -- we haven’t talked about the chapter on incorporation. It’s very smartly done and needs to be better theorized. I think Nathan and Michael take a good step in that direction.

 

The question I had is the Privileges and Immunities Clause protects the privileges and immunities of citizens. And when we talk about religious liberty the founders talk about it as a natural right. That is religious liberty is not just a natural right. It’s not a privilege and immunity of citizens. It’s a privilege and immunity of all of us.

 

And so do we just ignore the word “citizens” there? Incorporation through the Privileges and Immunities Clause has this problem of the privileges and immunities are those of citizens; whereas religious liberty including antiestablishment provisions don’t belong to just only citizens but all people. And I don’t know how to think through that.

 

Prof. Michael W. McConnell:  So this is a very difficult question, and the historians of these periods are not aligned on it. There is no orthodox answer. But my understanding, I think the best understanding, is that privileges and immunities was a legal clause that meant something like well-established liberties.

 

And so the first case and one that is just cited over and over and over during the Fourteenth Amendment debates is Corfield v. Coryell. And it lists as privileges and immunities well-established common law rights, things like to have an enforced contract, to be subject to the same criminal laws, to be able to sue and be sued and so forth. Those common law rights, most of the extended to everybody and not just to citizens.

 

And so I think there’s actually a kind of deep conceptual confusion in the English mind, one that is not bad -- it’s not evil. It doesn’t have bad results -- but a deep confusion between common law rights and natural rights. For most British people when they thought about what are the important rights, hey, are you going to call them natural rights, or are you going to call them common law rights? They’re pretty much the same. And I think that that set of already established important rights are what the Fourteenth Amendment points to.

 

And with respect to establishment, it’s hard because insofar as one of the purposes and one of the meanings of the Establishment Clause was that Congress would not pass any laws about a state establishment. So Congress had to have hands off. This is a question of establishment to the states. Well, that is not an individual right of any sort, so that cannot logically be incorporated.

 

But the other side of the Establishment Clause is that the federal government could not establish a religion. And that does include individual rights like not to be compelled to go to church or to pay money to a church, not to have the government meddling in the doctrines and personnel of your church. So that can be understood. There’s no conceptual problem with recognizing those elements of disestablishment as individual rights.

 

And Nathan and I believe that that’s the best way to understand how and why the Privileges and Immunities Clause of the Fourteenth Amendment could include disestablishment. It’s not about the states’ rights aspect of establishment. It’s about the non-establishment aspects of establishment.

 

Dr. Vincent Phillip Munoz:  That answers many of the questions that have been asked about the Fourteenth Amendment with Justice Thomas in the background. Adam, how about we go to the question on school choice? Let me reformulate it a little bit. John Ferguson’s (sp) asking about school choice and suggesting it’s inevitable. I’ll just add I hope so to that.

 

In the main case -- I think is that Carson? The recent main case where the Court -- this if memory serves me right said -- I’m simplifying here -- but if you fund private schools, you can’t discriminate against religious schools, and so sort of nondiscrimination provision. I think that’s the essence of the decision. The Court does that under the Free Exercise Clause. Michael, would your book -- would you and Nathan say actually that decision was correct, but would you have placed it under the Establishment Clause under your denominational equality prong?

 

Prof. Michael W. McConnell:  Um --

 

Dr. Vincent Phillip Munoz:  Let me rephrase the question. Is Carson correct? That is if the state funds nonreligious civic activity, it also must fund religious civic activity? Does that follow from your understanding?

 

Prof. Michael W. McConnell:  Yes, it does, not denominational equality, which is equality between religions. That would be like Methodists versus Episcopalians. And so I don’t have any problem with that being an aspect of free exercise in a kind of unconstitutional conditions theory regarding free exercise. But we do believe -- I’m even firmer in the belief that there is -- that it’s consistent with disestablishment for education to be funded this way.

 

What a lot of people don’t realize is that there were no public schools at the Founding, and so when you do the way back machine and ask yourself well, what do they think about public schools, they didn’t have public schools. We don’t know. The first comprehensive public system of public education didn’t come about until Massachusetts in the 1830s. That’s pretty late into the Republic.

 

But they did give financial support to schools, most of which, not all -- not all but most of which were affiliated with one or another religious denomination. And we cite A History of Education in New York City. And in 1807 -- I’m not sure of the exact date but around that in which I think 13 different schools were being supported financially by the government. And they included pretty much everything, including one nonsectarian school and including a school specifically for African-American students as well.

 

And this didn’t really become controversial until Catholics became more numerous in the United States, and they said we want this too. And it ran into this sort of deep seated anti-Catholicism of Americans in the early years. And so the fights were over that. And in the end what we got were public schools which were for a long time, a hundred years or more, affectively protestant, and then no money for the competing schools which were mostly Catholic schools.

 

And when the Supreme Court got into this business, they actually quoted from some anti-Catholic materials. It’s really pretty shocking that they didn’t recognize the anti-Catholicism behind a lot of this that they were supporting. And it’s our view that the decision to move in the direction of school choice is a disestablishmentarian move. Now, whether it’s compelled by the Establishment Clause in addition to the Free Exercise Clause I don’t know.

 

I don’t think it matters very much if it’s both, but I’m not really into sort of identifying which hole to stick the peg in. But I do think it’s entirely consistent with disestablishment because the whole spirit of disestablishment is to prevent the government from fostering a uniformity of belief. And moving away from government schools to a variety of, a diversity of schools seems very much a step in the direction of disestablishmentarianism rather than the opposite.

 

Dr. Vincent Phillip Munoz:  We’re running out of time, and I want to get two comments in that are real strengths of the book. And one refers to -- this is not the overall theme of the book, but the book really nicely highlights the anti-Catholicism that informed some of the Court’s early jurisprudence. And I think shocking is right. I think you have a quote from John Dewey which has not aged well in how predominate elite thought really sort of shocks the conscience when you see it. And it helps explain --

 

Prof. Michael W. McConnell:  And I think quite late into American history.

 

Dr. Vincent Phillip Munoz:  Yeah. Very much so.

 

Prof. Michael W. McConnell:  I mean, this is up to and maybe even beyond John F. Kennedy’s election.

 

Dr. Vincent Phillip Munoz:  I was really surprised and thankful that you didn’t sugarcoat that. Also -- and we referred to this earlier. I just wanted to comment as I really think this is a strength of the book to interpret the Establishment Clause and Free Exercise Clause as a coherent whole. I have a slightly different interpretation of the two clauses, but whatever your interpretation of these clauses is, if you’re saying my interpretation of the Establishment Clause violates my interpretation of the Free Exercise Clause, you’re doing something wrong. And the problem is not the Constitution. The problem is your interpretation.

 

And I think this book really nicely presents the First Amendment religion clauses as a coherent whole, something the Court has failed to do. Whatever our disagreements are, this is certainly a step in the right direction. And it’s a subtle theme throughout the book, but it’s a really important one when it comes to actual jurisprudence.

 

Prof. Michael W. McConnell:  Yes, it’s one thing to say that a constitutional right might in some peculiar circumstance conflict with another, like fair trials and the public nature might in a particular case. But to say that two clauses are actually fundamentally at tension with each other is just to impute to the Framers a kind of nonsense that it couldn’t possibly be right. And then when you look at the history and you see the very same people were for both, it really becomes improbable.

 

Dr. Vincent Phillip Munoz:  Yeah, no. The presumption that we, the interpreters, are right and the Framers were contradictory is irritating at best.

 

Adam Griffin:  I think we’re coming to the end of our time here. I want to give each of our speakers if it’s alright with Chayila one kind of final comment from each speaker. I really appreciated this conversation. Thank you both so much.

 

Professor McConnell, I thought the book was terrific. This harmony of the clauses is really excellent, and I think that the title really gets to the essence, not just of religious but of all liberty -- the essence of religious and civil liberty which the Founders often saw as being part and parcel of the same common principle that if in a society we can agree to disagree about certain things that don’t violate each other’s rights and we can agree to disagree about other practices, then we can live in a free and diverse society. And if we can’t agree to disagree, then it means that we’re just going to be struggling for power and to wield power to control other people. And so I think that fundamental principle is really important.

 

And the concluding chapter does a really nice job of saying can we expand the Establishment Clause’s fundamental principle to all sort of ideological divides. And it really made me think about this idea of Madison’s first contestation was the Establishment Clause and the disestablishment movement in Virginia and this idea that I think maybe he learned something from that that he transposed into “Federalist 10” and this idea of factions and pluralism writ large -- that there was this idea of this structural component of the Establishment Clause applied to our extended republic in general and this diversity of idea transposes from the Establishment Clause principles to the entire American system. And so I thought the book was really fantastic. And if each speaker would like to give final remarks.

 

Dr. Vincent Phillip Munoz:  Let me go first because Professor McConnell should have the concluding word. Just two small things: one, people should read the book because there’s much to learn from it, especially the history. And two, you should read it because the Supreme Court justices are, and I think this book is going to be hugely influential. So if you want to know where the Court is likely to go, this is the book to read.

 

Prof. Michael W. McConnell:  So Adam, you referred to the last chapter, and it is suggestive rather than prescriptive. The Establishment Clause and the Free Exercise Clause, they’re about religion. That’s the word, free exercise of religion, establishment -- laws respecting establishment of religion. They don’t apply to anything else.

 

But in that last chapter we invite readers to think about whether the strategy reflected in those two clauses working together might not be at least a start of a recipe for how to deal with other deep-seated points of disagreement where the answer is really important to individuals and there’s no need to agree. We don’t have to have a society where everybody takes the same view. And so the combination of allowing individuals to go their own way, even publicly -- but to go their own way and the government not to take sides about it is we think might be an invitation for others.

 

Our country is today riven -- the religion question is still with us of course, but it’s also riven with disagreements about things like sexuality and transgender issues and abortion and others. Now, some of those the government simply has to have a policy, but for some can’t they just -- wouldn’t a policy of letting each person sort of go their own way be a more peaceful and more diverse approach?

 

Chayila Kleist:  Well, with that, we can wrap out our webinar. On behalf of The Federalist Society, thank you to our panel for giving us some of your time today. We really appreciate the benefit of your valuable time and your expertise and you giving us part of your mornings. Thank you also to our audience for joining and participating. We welcome listener feedback by email at [email protected].

 

And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events like two other webinars happening today, one another Talks with Authors on the Soul of Civility happening at 12:00 p.m. Eastern and one at 3:00 p.m. Eastern which is another religious liberties event on FCA v. San Jose Unified School District. I would like to see you at either of those. With that, thank you all for joining us today. We are adjourned.