Unleash the States?

Frederick Mark Gedicks March/April 2025
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For decades state legislatures have been bound by the establishment clause of the First Amendment. So why are some scholars now calling for “disincorporation,” arguing that states should be free to make laws “respecting an establishment of religion”?

The establishment clause of the First Amendment declares, “Congress shall make no law respecting an establishment of religion.” Since 1947 the clause has applied to state governments as well as Congress.1 Critics argue that the clause should never have been applied to the states because (1) it does not protect an individual right or liberty; (2) it reserves power to states and so cannot logically limit state power action; and (3) it was never historically understood to bind the states. Supreme Court justice Clarence Thomas has long persisted in this view2; recently Justice Neil Gorsuch joined him.3 One critic has suggested that the time seems ripe to undo the application of the clause to the states.4

The critics are wrong. By disabling Congress from establishing religion, the establishment clause set out an individual immunity from the legal consequences of any congressional attempt to create a national church. The text, therefore, protects an individual liberty from federal action that could logically extend to state action. Further, historical evidence shows that the Constitution’s Fourteenth Amendment was meant to apply the establishment clause to the states along with the rest of the Bill of Rights. Most important, freeing the states to establish religion would shrink religious liberty protections for individuals and religious congregations in the United States, especially among religious minorities.

“Incorporation” of the Bill of Rights

The Bill of Rights did not apply to the states when ratified in 1791; the Fourteenth Amendment accomplished this upon its ratification in 1868, through either its privileges or immunities clause or its due process clause: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

The intended application of the Bill of Rights to the states was promptly rejected by a Reconstruction-era Supreme Court wary of transferring state power to the federal government.5 Nevertheless, in the early twentieth century the Court began to apply provisions of the Bill of Rights to the states on a case-by-case basis, based on its assessment of the “fundamental” or indispensable role a particular right played in American democracy. This process came to be known as “incorporation” of the Bill of Rights against the states, borrowing from the common legal practice of “incorporating by reference”: the  provisions of the Bill of Rights that protect fundamental liberties were considered to have been incorporated against the states by the due process clause’s reference to “liberty.”6 The Court has incorporated nearly all the provisions of the Bill of Rights against the states.

“Established” Religion

Eighteenth-century established religion possessed three signal attributes. First, the government granted established religion political and legal privileges. Second, it supported established religion through land grants, taxes, and tax exemptions not afforded other religions. Finally, as an arm of the government, established religion was subject to government control of its leadership and governance and government oversight of its worship and liturgy. The eighteenth-​​century Church of England was the exemplar: it excluded non-Anglicans from most political offices and received vast landholdings and tax revenues from the Parliament and the crown, which also chose its clerics and regulated its liturgy and worship.

Textual and Logical Support

Disincorporationists assume that the establishment clause is only a reservation of power to the states that does not protect individuals, like the Tenth Amendment: just as the Tenth Amendment reserves to the states all powers not delegated to the federal government, the establishment clause, in their view, reserved government power over religious establishment or disestablishment to the states. In other words, the clause does not protect an individual “privilege,” “immunity,” or “liberty” applicable to the states through the Fourteenth Amendment and thus cannot logically limit state action.

This assumption is wrong, both textually and logically. As the table below illustrates, the text of the establishment clause does not track that of the Tenth Amendment. The establishment clause sweeps more broadly, going beyond a mere reservation of state power to affirmatively disabling Congress from establishing religion.

A legal disability entails legal immunities. Just as an individual right implies a government duty to avoid violating the right, a disability on government implies immunity from liability or punishment when government acts in violation of the disability. The establishment clause’s disability on Congress from establishing religion immunized the states from federal attempts to interfere with state establishments of religion, as disincorporationists rightly claim. But it also immunized the people from infringements on their liberty from federal establishments. One disability, but two immunities.

The logic of establishment clause incorporation easily follows. When the Court applied the clause to the states, it extinguished the state immunity from federal interference with state-established religion, but extended the individual immunity to include freedom from the consequences of state-established religion. Incorporation, in other words, enlarged the boundaries of the establishment clause disability from no law vesting federal privilege, assistance, or control in religion to no law vesting government privilege, assistance, or control. Incorporation protected individual liberty by immunizing people from the consequences of all government attempts, state and federal, to establish religion. Incorporation of the establishment clause against the states, therefore, was both logical and consistent with the text of the Fourteenth Amendment, which protects “immunities” and “liberty” from state infringement.

Historical Support for Incorporation

Historical evidence confirms that the Fourteenth Amendment was understood to have applied all the provisions of the Bill of Rights to the states,7 including the establishment clause—a position that came to be known as “general incorporation.” Representative John Bingham (R-Ohio) and Senator Jacob Howard (R-Mich.), two pivotal figures in Congress’s drafting and adoption of the amendment, frequently and publicly expressed their understanding that it applied the entirety of the Bill of Rights to the states.8 Numerous lower federal courts, federal prosecutors, practicing lawyers, and individual justices did as well, as did even some Democrats who opposed ratification. As Earl Maltz has concluded: “Contemporaries must have understood the privileges or immunities clause to embody most of the Bill of Rights, and they probably viewed the first eight amendments as incorporated in their entirety.”9

There is also contextual evidence that the Fourteenth Amendment was understood to apply the establishment clause specifically to the states. In the decades prior to the Civil War, slaveholding states legally entrenched pro-slavery religion, licensing only preachers and congregations with pro-slavery theologies and often supporting them with tax dollars; they correspondingly suppressed anti-slavery Christianity and persecuted its leaders and members, often violently.10 “By 1860,” Kurt Lash has concluded, “the South had erected the most comprehensive religious establishment to exist on American soil since Massachusetts Bay.”11

Members of Congress condemned this pro-slavery establishment, both during the Civil War and after the abolition of slavery, when the defeated Confederate states sought to restore a functional slavery by dramatically restricting the liberty of newly freed slaves and free Blacks. When Congress took up the drafting and adoption of the Fourteenth Amendment, one of its goals was elimination of this established pro-slavery, anti-Black Christianity.

The Supreme Court’s rejection of general incorporation soon after ratification does not negate the widespread original understanding that the Fourteenth Amendment applied the Bill of Rights to the states, including the establishment clause.

Why Now?

Why things happen is a complicated question better left to historians with distance and perspective. Still, one can venture explanations for the evident salience of establishment clause disincorporation in the present moment. The first is a culturally conservative Supreme Court super-majority, unafraid to reject settled precedent to uphold prerogatives of the Christian right. Recent establishment clause decisions have favored theologically conservative Christianity, upholding state funding for private Christian schooling,12 Christian symbols in the public square,13 and ostentatiously public prayer by Christian teachers in the public schools.14 The Court has also ordered exemptions for conservative Christian employers from requirements that they provide contraception coverage in employee health insurance plans, thereby depriving employees without these objections from a valuable health benefit. And, of course, the Court eliminated the constitutional right of abortion access, in line with a perennial conservative Christian goal. In the light of these decisions, reversal of establishment clause incorporation is hardly inconceivable.

A second force is, paradoxically, the recent decline in Christian denominational affiliation and the corresponding rise in unbelief. This seems to have triggered a reactionary nostalgia on the Christian right. Well into the twentieth century, conservative Christianity controlled political and cultural life in the United States. Public school teachers conducted mandatory readings from the Bible and led their students in Christian prayers; Christian legislative prayer took place in Congress and most state and local legislative bodies; and Sunday closing laws enforced the Sabbath, while Good Friday was often a state holiday. Latin crosses, Christmas nativities, and Ten Commandment monuments were ubiquitous in public life, their Christian symbolism unapologetically justified by the insistence that the United States is a Christian nation.

This cultural dominance came undone in the 1960s and 1970s, as the Court applied the strict separation of church and state as its primary understanding of the establishment clause. Conservative Christians continue to blame these separationist decisions—especially those invalidating public school prayer and Bible reading—for what they see as the subsequent decline in American values and morals. Beset by radical religious pluralism and weakening commitment to traditional Christian religion, conservative Christians have now turned to government to arrest the decline. Elimination of anti-establishment constraints would release state governments to restore conservative Christian hegemony in public life.

Finally, the West has weakened its commitment to liberal values in favor of a populism that includes sympathy for established religion. In liberal societies government leaves individuals free to decide for themselves what the good life is; it enforces only a “thin” or procedural theory of the good designed to protect and preserve individual autonomy.15 The freedom of speech, for example, protects self-expression without dictating what we must (or must not) say, allowing punishment of the content or viewpoint of speech only in extreme and dangerous circumstances. The establishment clause is similar, prohibiting establishment of any religion, regardless of its demographic dominance or the popularity of its rituals and teachings.

Yet prominent American scholars now contend that liberalism has failed, and urge the subordination of individual choice to communal values enforced by government—which, it turns out, invariably include conservative Christian beliefs and practices.16 Several European countries have gone down this path—notably Hungary and Slovakia—abandoning the religious neutrality and individual choice of liberalism for a nationalism that includes commitment to the values of historically established Christianity.

Toleration Displacing Equality

Without establishment clause constraints, states would be free to privilege, subsidize, and endorse a particular religion, which would inevitably be some version of conservative Christianity. Mainline Protestants are uninterested in establishing their or any other religion, while reform and conservative Jews, Latter-day Saints, Muslims, Seventh-day Adventists, Buddhists and followers of Eastern religions, and other minority believers could not hope to establish their beliefs outside of a few scattered enclaves. One can already see the outlines of conservative Christian establishment in state laws that mandate posting the Ten Commandments and teaching from the Bible in public schools, which permit tax dollars to fund pervasively religious—and, again, invariably conservative Christian—schooling, and which excuse conservative Christians from complying with anti-discrimination and other laws that protect the interests of racial, ethnic, and sexual minorities.

The Supreme Court’s new and robust applications of the free exercise clause would presumably prevent targeted discrimination and outright persecution of dissenters and unbelievers. Still, conservative, state-established Christianity would make their lives harder; it would threaten to replace religious neutrality and equality, historically protected by the establishment clause, with classic religious toleration, in which one religion receives government favor and support while everyone else is free to worship something else (or not) at greater cost in their day-to-day lives. Imagine the difficulty and indignity of knowing one’s tax dollars support a state-​established religion that preaches against one’s own beliefs; whose symbols, rituals, and beliefs pervade every government action; and whose members always prevail in discretionary government decisions.

None of this is something for America to hope for. We should pray the time is never ripe for disincorporation.

1 Everson v. Board of Education, 330 U.S. 1 (1947) (unanimous decision regarding application of establishment clause to states).

2 See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 677-680 (2002) (concurring opinion); Cutter v. Wilkinson, 544 U.S. 709, 727-733 (2004) (concurring opinion); Van Orden v. Perry, 545 U.S. 677, 692-698 (2005) (concurring opinion); Town of Greece v. Galloway, 572 U.S. 565, 603-610 (2014) (concurring in part and concurring in the judgment); American Legion v. American Humanist Association, 589 U.S. 29, 73-77 (2019) (concurring in the judgment).

3 See Espinoza v. Montana Department of  Revenue, 591 U.S. 464, 489-497 (2020) (Thomas, J., joined by Gorsuch, J., concurring).

4 Frederick W. Claybrook Jr., “The Time Is Ripe to Disincorporate the Establishment Clause,” Federalist Society Review 25 (2024): 191.

5 See Slaughter-House Cases, 83 US (16 Wall.) 36 (1873).

6 Louis Henkin, “ ‘Selective Incorporation’ in the Fourteenth Amendment,” Yale Law Journal 73 (1963): 74, 79; Michael Kent Curtis, “John A. Bingham and the Story of American Liberty: The Lost Cause Meets the ‘Lost Clause,’ ” Akron Law  Review 36 (2015): 617, 623.

7 E.g., Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986); Earl Maltz, Civil Rights, the Constitution, and Congress (1990); Richard L. Aynes, “On Misreading John Bingham and the Fourteenth Amendment,” Yale Law Journal 103 (1993): 57; James J. Ward, “The Original Public Understanding of Privileges or Immunities,” Brigham Young University  Law  Review 2011 (2011): 445; Bryan H. Wildenthal, “Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67,” Ohio St. Law Journal 68, no. 6 (2007): 1509.

8 See Frederick Mark Gedicks, “Incorporation of the Establishment Clause Against the States: A Logical, Textual, and Historical Account,” Indiana Law Journal 88 (2013): 669, 714, 716-718 (quoting and citing sources).

9 Maltz, pp. 117, 118.

10 See Gedicks, pp. 711-713 (quoting and citing sources).

11 Kurt T. Lash, “The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle,” Arizona State Law Journal 27 (1995): 1085, 1137.

12 See, e.g., Carson v. Makin, 596 U.S. 767 (2022).

13 See, e.g., American Legion v. American Humanist Association, 588 U.S. 19 (2019).

14 See Kennedy v. Bremerton School District, 597 U.S. 507 (2022).

15 E.g., Immanuel Kant, The Metaphysics of Morals (1797), in Practical Philosophy, trans. and ed. Mary J Gregor (1996), pp.  353, 387 (defining the “universal principle of right” as purely formal); John Rawls, Political Liberalism (paperback ed., 1996), pp. 178-211 (distinguishing political conceptions of justice from religious and other comprehensive conceptions of the good).

16 E.g., Patrick J. Deneen, Why Liberalism Failed (2018); Adrian Vermeule, Common Good Constitutionalism: Recovering the Classical Legal Tradition (2022).

Article Author: Frederick Mark Gedicks

Frederick Mark Gedicks is Guy Anderson chair and professor of law emeritus at Brigham Young University Law School. This article is drawn from Frederick Mark Gedicks, “Incorporation of the Establishment Clause Against the States: A Logical, Textual, and Historical Account,” Indiana Law Journal 88 (2013): 669, 714, 716-718.