In Praise of the Establishment ClauseMichael McConnell May/June 2023
An Interview With Michael McConnell
It’s fair to assume there are few Americans who’ve given more thought to the U.S. Constitution’s First Amendment religious clauses than Michael W. McConnell. As a lawyer, federal judge, and scholar, McConnell has spent decades on the front lines of our nation’s never-ending legal and cultural battles over the meaning of these 16 words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Not all appreciate his perspective. When McConnell’s name appeared on a list of potential Supreme Court nominees in 2005, he was criticized by some for supporting a “more porous wall between church and state.” Yet three years earlier, when he faced Senate confirmation for a seat on the Tenth Circuit Court of Appeals, more than 300 law professors, spanning the ideological spectrum, wrote to the Senate Judiciary Committee with “enthusiastic support,” and a Washington Post editorial called McConnell “one of the leading legal scholars of his generation.”
Since stepping down from the bench in 2009, McConnell has directed the Constitutional Law Center at Stanford University. He a senior fellow at the Hoover Institution, a member of the Meta Oversight Board—the so-called Facebook Supreme Court—and his opinion is sought from the media on constitutional questions ranging from Trump’s impeachment trial to Biden’s student loan forgiveness plan.
All this means that when McConnell publishes a book exploring the history and jurisprudence surrounding the establishment clause, it falls into the must-read category for anyone interested in First Amendment issues.
Bettina Krause, editor of Liberty magazine, recently spoke with Professor McConnell about his new book, due out this month, which he coauthored with Nathan S. Chapman: Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience (Oxford University Press, 2023).
Bettina Krause: Some people argue that the establishment clause requires religion to be removed entirely from the civic space. Others, however, argue it imposes very few restraints on how far government can advance religion. Which point of view tracks most closely with the Framers’ intent?
Michael McConnell: The original hopes for the establishment clause were neither of those extremes. In fact, one of the most interesting aspects of our American founding is the extent to which disestablishment—that is, opposition to state establishment of religion—was led by some of the most intensely religious people in the country. It’s just not historically correct to say that at the founding there was a clash between secularism and religion, and that secularism is on the side of disestablishment. In fact, it was James Madison’s Baptist constituents—who were part of what was then a reviled religious minority—who really pressed him to take the lead in proposing religious freedom amendments as part of our Bill of Rights.
Krause: So the establishment clause was not intended to secure freedom from religion so much as freedom for religion?
McConnell: That is not precisely the way I would put it. The amendment was about getting government out of the business of religion and leaving it to private individuals and institutions to decide what kind of religious culture we would have. I sometimes jokingly say that free exercise is like free enterprise. Not having the government running an economy enables the economy to flourish. In the same way, not having the government running religion enables religion to flourish, in all its diversity, warts and all.
Krause: If that was the original intention, has this been reflected in the way the Supreme Court has historically engaged with the establishment clause?
McConnell: The Supreme Court didn’t begin interpreting the establishment clause until after World War II, and its initial interventions were, in my opinion, mostly misguided. As we put forward in our book, the Court misunderstood the history around the establishment clause, and they adopted a kind of “high wall of separation” approach, which is not actually what the amendment is about.
Religion is separate from government, but not because of hostility toward religion and not out of an attempt to make everything that’s public secular. Rather, the establishment clause helps make everything that’s public pluralistic, and that includes religiously pluralistic. So there is no thumb on the scales against religion.
The Supreme Court really stumbled around through the years, with many confusing, contradictory opinions. It has been only, perhaps, in the past 25 years that the Court has begun to emphasize the importance of government neutrality in the religious sphere. And neutrality is not the same thing as secularism. Neutrality is neither for nor against religion. In contrast, secularism is a particular point of view about religion, and the government should be no more secularistic than it is religious.
Krause: Would you say, then, that the so-called Lemon test, which the Court applied over a period of years to establishment clause questions, was the wrong approach?
McConnell: The Lemon test, which emerged only in the early 1970s, held that an act of government is unconstitutional under the establishment clause if it lacks a secular purpose, if its primary effect is either to advance or inhibit religion, or if it leads to an excessive entanglement between government and religion.
Now, there are a number of problems with this, beginning with just how ambiguous each of those three terms turn out to be. What exactly is a “secular purpose”? Does a purpose cease to be secular if many people believe in it for a religious reason, even though there are secular reasons to believe in it as well?
“Primary effect” is, if anything, even more confusing. Many laws have a whole bunch of different effects. How do you know whether an effect is primary or not? For example, are educational vouchers “primarily” about educational quality or “primarily” about religious choice? In fact, the Court, very quickly after Lemon, backed away from that phrase, and essentially said “any substantial effect.”
The question whether a law has “any substantial effect of either advancing or inhibiting religion” sounds neutral, but in all of the years of the Lemon test, the Court never struck down any law on the ground that it had an effect of inhibiting religion. All of its cases were about “advancing religion.”
And then, when they did away with the idea of “primary effect” and made it “any substantial effect,” what they really said was that any government action that makes religion better off in some sense is unconstitutional. Well, that’s a very odd proposition. At the founding, the establishment clause itself was expected to advance religion in the sense of making it free. And there are literally thousands of laws today at the state and federal levels—too many to list—that accommodate religion in one way or another. Everything from exemptions for kosher and halal slaughterhouses to military draft exemptions.
And so early on, lower courts struggled to figure out what the Lemon test meant. Frequently they said, “Well, this law is unconstitutional because its purpose is to enable people to practice their religion.” And the effect of that was to hobble the government’s ability to accommodate public life to different religious practices.
Krause: Many of these religious accommodation cases in the past related to minority religious rights. But today the most conspicuous accommodation cases feature majority religions—conservative Christians, for instance, who want exemptions from LGBTQ+ antidiscrimination requirements. Do you think this changes the narrative? That religious freedom is now seen more as a tool of traditional religion, rather than protecting minority religious rights?
McConnell: If you count the number of cases in this area, there are still by far more requests for accommodation from what we would consider to be traditional minorities. The two most common areas are within prisons, where people of minority faiths come up against the regimentation of prison life. The government controls everything—what you eat, what you do with your time, what you can read—and religious practices are frequently in conflict. And the second area is land-use decisions. You’d be surprised how many zoning conflicts there are, and minority houses of worship—such as Islamic worship centers—frequently encounter these obstacles.
But yes, the most conspicuous cases in recent years have involved traditional religions—not just Christianity but Islam and Orthodox Judaism as well—and their opposition to such things as abortion, or same-sex marriage, or certain aspects of transgenderism. These religions have teachings that are inconsistent with many modern progressive ideas. And suddenly modern progressives, who in the past would have championed religious dissent from majority opinion, find that religious dissent is something to be stamped out.
Krause: Unlike many Western nations, the United States still has high rates of religious participation. I know you’re not a prophet, but as you look down the track to a future during which perhaps religion plays a lesser role in the day-to-day life of citizens, how does this play into these accommodations for religion? What case do you make that religion still deserves special treatment?
McConnell: It’s true, I’m not a prophet. And we just don’t know how the religious demographics are going move. In the past, religion has gone into periods of decline and had periods of revival. In fact, Thomas Jefferson predicted that by the end of his life, traditional Christianity would wither away. “I trust that there is not a young man now living in the U.S. who will not die a Unitarian,” he said. Instead, partly as a result of disestablishment in the early nineteenth century, the United States experienced one of the most remarkable periods of religious revivals in history, called the Second Great Awakening.
So who knows what’s going to happen? But in answer to your question, assuming that the nonreligious segments of society become politically dominant in America, it depends on what attitude they bring. Will they be civil libertarian? Or will they be repressive? Because secularism comes in different flavors, just as religion does.
There are a lot of secular people who don’t want religion rammed down their throats, but they also don’t have any desire to ram secularism down other people’s throats. Instead they believe that the ideal in a free society is for everyone to be able to live their lives in accordance with conscience, so long as this presents no violence to the rights of others. So long as secularism takes that form, I think religious freedom will be fine.
Then there’s also the fact that we still have a Constitution with a Bill of Rights. And even if a certain hostility to religion becomes politically more powerful, I assume the courts will still be able to pick up their Constitution, turn to the First Amendment, read it, and say, “Well, this still means what it says,” which is that people are free to practice their religion.
Krause: There’s a fascinating discussion in your book about certain contemporary ideologies that aren’t religious, but that are argued with a kind of religious intensity—everything from political “-isms” to ideology around issues of sexual orientation and identity. There’s fear—from both ends of the political spectrum—that one side or the other will grasp political power in order to establish a government-sponsored cultural uniformity around these various “- isms.”
McConnell: Yes, and this is what drives many of the political fights about school curriculum—even at the college and university levels. In 1943 Justice Robert Jackson wrote that there’s probably nothing more guaranteed to create divisions in our country than the question of “what doctrine and whose program public educational officials shall compel youth to unite in embracing.”
He’s not talking just about religion. He’s talking about any ideology.
There are two approaches to this problem. One is to not allow public schools to have a curriculum that reflects any single ideology. People don’t want things they dislike taught to their children, but they don’t mind using the power of the state to inculcate what they do like. So this ideological neutrality would have to apply across the board.
Another approach focuses on the role of private education. For the past 235 years we’ve fought a lot about the rights of private education. But if there are a diversity of schools—both public and private—then we can all choose for ourselves, and our children can be brought up in ways that conform to family beliefs. And this, in turn, helps make our culture more diverse. And this is one of the key messages of this book—just how valuable a diversity of belief is for America.
Krause: You’ve said that the Supreme Court’s treatment of state funding for religious schools represents perhaps the greatest doctrinal U-turn the Court has taken. Last year’s decision in Carson—requiring states to allow religious schools to participate in funding programs on the same footing as secular schools—really shows the extent of this doctrinal whiplash. From the sound of it, you’re saying the decision in Carson is in keeping with this vision for a more diverse educational landscape?
McConnell: Absolutely. At America’s founding we didn’t have public schools. We had nothing but private schools, and many of them were religious. For the first several decades in New York, for instance, there were schools supported by about 12 or 13 different denominations, including a Jewish school. It was really only when Catholics began establishing schools that Protestant-dominated governments began to object. Anti-Catholicism was a big thing at the time, and it plays a part in these modern cases as well.
For several decades, after the arrival of the Lemon test, the Court most often held that it was unconstitutional to include religious schools in government financial assistance going to private education. They began to waiver about that principle somewhere around the turn of the century. Then the Court began to ask itself, “Well, OK, if treating religious schools neutrally is not unconstitutional, why is discriminating against them constitutional? Isn’t the best way to achieve the purposes of the religion clauses to treat all private education the same? If we’re going to discriminate, we should discriminate on the basis of educational quality, not on what religion they may be affiliated with.”
And so the Supreme Court has, in just the past couple of years, come firmly to the view that, if the government is going to fund private education at all, it cannot discriminate on the basis of the religious character of any of the schools. I think the framers of the First Amendment would’ve recognized that approach, and they would’ve been surprised that we ever went down the strict separation road.
Krause: I wonder, though, if the Carson decision could lead in practice to the state preferring those religions already operating schools or that have resources to invest in school buildings and infrastructure. In other words, the vast bulk of state funding could flow to those religions—such as Catholics or Seventh-day Adventists—that already operate large nationwide school systems, rather than to the tiny religious sect down the road that doesn’t have the ability to set up that sort of educational infrastructure. Could this have the practical effect of preferring some religions over others?
McConnell: Well, I think it’s something we need to pay attention to and make sure that approaches to school funding are cognizant of that concern. The amount of money given, perhaps, should be large enough to include some components of the capital costs—building or renting space—of smaller religious institutions.
Now, there are also disadvantages to having to maintain a large number of schools. The Catholics, for instance, do have schools all over, but many are located in places where the Catholic population has mostly departed. Yet those schools are costly to maintain. So we shouldn’t quickly conclude that Catholics would be at an advantage. I think the economics of this is somewhat more complicated. And the Catholic share of the private religious education market has gone way down in the past 30 years. There are far more Protestant evangelical schools now, along with more Jewish and Islamic schools.
Krause: How far, once a government starts funding a religious school, does it then have the right to intervene in how that school administers itself? How far can it influence, for instance, the religious character of the school? Could government funding of religious schools conceivably act as a sort of Trojan horse? You take the money, and then, 10 years down the track, you face the choice of either changing your religious character or losing your funding.
McConnell: I think that’s a very serious concern, and the Court has not really come down one way or another on this. When it comes to what I call “secularization strings”—the idea that a school would have to abandon its religious character—I think the Court has now rejected that idea. But when it comes to requirements that are not on their face religious, but may affect religions in some way—well, we don’t yet know. I think that in the end it’s going to have to come down to whether the requirements we’re talking about are sufficiently important, that the schools aren’t serving their educational purpose. The focus of governmental policy should be on educational quality, not on religion or ideology.
We’ve done something in this country that is, I think, quite interesting and is underappreciated. Instead of having direct government regulation of private schools, for the most part we’ve allowed nongovernmental accreditation agencies to accredit these schools. There is a multiplicity of these agencies. And then, the Department of Education accredits these accrediting agencies, and so schools have a certain choice of accrediting agency. That way, we avoid at least some of the more extremes of uniformity, because as long as there’s a difference and choice, as long as there’s a thousand flowers being allowed to bloom, the problem you identify is at least being staved off a bit.
Krause: You’ve dealt with establishment clause issues for decades—as a lawyer, a judge, a constitutional law professor. What do you think is the most significant way the establishment clause has shaped the American republic?
McConnell: I think the essence of a free society is in the idea of “live and let live.” The establishment clause is basically “live and let live” with regard to religion. It has enabled people to practice their beliefs. It has fostered a culture of diversity and tolerance. It hasn’t produced a secular culture, as Jefferson may have hoped, but it has produced a diverse culture in which religion has been allowed to thrive within the private sector.