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Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience
In one of the most thorough accounts of the Establishment Clause of the First Amendment, Nathan S. Chapman and Michael W. McConnell provide an insightful overview of the legal history and meaning of the clause, as well as its value for promoting equal religious freedom and diversity in contemporary America.
The Establishment Clause of the First Amendment, "Congress shall make no law respecting an establishment of religion", may be the most contentious and misunderstood provision of the entire U.S. Constitution. It lies at the heart of America's culture wars. But what, exactly, is an "establishment of religion"? And what is a law "respecting" it?
Many commentators reduce the clause to "the separation of church and state." This implies that church and state are at odds, that the public sphere must be secular, and that the Establishment Clause is in tension with the Free Exercise of Religion Clause. All of these implications misconstrue the Establishment Clause's original purpose and enduring value for a religiously pluralistic society. The clause facilitates religious diversity and guarantees equality of religious freedom by prohibiting the government from coercing or inducing citizens to change their religious beliefs and practices.
In Agreeing to Disagree , Nathan S. Chapman and Michael W. McConnell detail the theological, political, and philosophical underpinnings of the Establishment Clause, state disestablishment, and the disestablishment norms applied to the states by the Fourteenth Amendment. Americans in the early Republic were intimately acquainted with the laws used in England, the colonies, and early states to enforce religious uniformity. The Establishment Clause was understood to prohibit the government from incentivizing such uniformity. Chapman and McConnell show how the U.S. Supreme Court has largely implemented these purposes in cases addressing prayer in school, state funding of religious schools, religious symbols on public property, and limits on religious accommodations. In one of the most thorough accounts of the Establishment Clause, Chapman and McConnell argue that the clause is best understood as a constitutional commitment for Americans to agree to disagree about matters of faith.
The Establishment Clause of the First Amendment, "Congress shall make no law respecting an establishment of religion", may be the most contentious and misunderstood provision of the entire U.S. Constitution. It lies at the heart of America's culture wars. But what, exactly, is an "establishment of religion"? And what is a law "respecting" it?
Many commentators reduce the clause to "the separation of church and state." This implies that church and state are at odds, that the public sphere must be secular, and that the Establishment Clause is in tension with the Free Exercise of Religion Clause. All of these implications misconstrue the Establishment Clause's original purpose and enduring value for a religiously pluralistic society. The clause facilitates religious diversity and guarantees equality of religious freedom by prohibiting the government from coercing or inducing citizens to change their religious beliefs and practices.
In Agreeing to Disagree , Nathan S. Chapman and Michael W. McConnell detail the theological, political, and philosophical underpinnings of the Establishment Clause, state disestablishment, and the disestablishment norms applied to the states by the Fourteenth Amendment. Americans in the early Republic were intimately acquainted with the laws used in England, the colonies, and early states to enforce religious uniformity. The Establishment Clause was understood to prohibit the government from incentivizing such uniformity. Chapman and McConnell show how the U.S. Supreme Court has largely implemented these purposes in cases addressing prayer in school, state funding of religious schools, religious symbols on public property, and limits on religious accommodations. In one of the most thorough accounts of the Establishment Clause, Chapman and McConnell argue that the clause is best understood as a constitutional commitment for Americans to agree to disagree about matters of faith.
240 pages, Hardcover
Published June 27, 2023
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Displaying 1 - 6 of 6 reviews
October 17, 2023
192 pages, published 2023 by Oxford University Press
I wanted to refresh my memory and be updated on current understanding and application of the Establishment Clause of the First Amendment.
I am disturbed by some people in the state government of Utah, and some people in positions of influence in my church, misguidedly advocating that the founding fathers of the United States “intended America to be a Christian nation”.
This view is incorrect and harmful. The Establishment Clause is best understood as a constitutional commitment for Americans to agree to disagree about matters of faith.
page 189
“If the establishment clause were properly understood and comprehensively implemented, it’s very existence would dampen the level of our extreme polarization, because it would guarantee that neither side can use its momentary political power to impose an orthodoxy and suppress disagreement.”
page 188
“The freedom ensured by the Establishment Clause has facilitated the development of the most religiously heterogenous society the world has ever known.”
I wanted to refresh my memory and be updated on current understanding and application of the Establishment Clause of the First Amendment.
I am disturbed by some people in the state government of Utah, and some people in positions of influence in my church, misguidedly advocating that the founding fathers of the United States “intended America to be a Christian nation”.
This view is incorrect and harmful. The Establishment Clause is best understood as a constitutional commitment for Americans to agree to disagree about matters of faith.
page 189
“If the establishment clause were properly understood and comprehensively implemented, it’s very existence would dampen the level of our extreme polarization, because it would guarantee that neither side can use its momentary political power to impose an orthodoxy and suppress disagreement.”
page 188
“The freedom ensured by the Establishment Clause has facilitated the development of the most religiously heterogenous society the world has ever known.”
November 14, 2023
Fantastic historical overview of the Establishment Clause and a cogent argument for a secular state, instead of a secularist state.
February 3, 2025
The main gist of the book is that the Establishment Clause has been misinterpreted over the centuries so that it is in conflict, or at least tension, with the Free Exercise Clause, but they actually work in tandem. The Establishment Clause was originally understood as the government should not be able to enforce religious uniformity on its people, but not that the wall between church and state should be absolute. Most states had official churches when the Constitution came into force but those were disestablished in the following decades. Many of the problems caused by recent interpretations stem from the fact that liberals think that the baseline should be no religion in government, where the authors think that it should be no coercive religion in government.
Their argument is based partly on finding a more effective way to tamp down religious/political divisions in the United States, but more about a historical understanding of what the Framers meant by "establishment" and that their definition was largely used until well into the 20th century. According to the authors, there were six aspects of establishment that bothered the founding fathers: "1) control over doctrine, governance, and personnel of the church. 2) compulsory church attendance. 3) financial support. 4) prohibitions on worship in dissenting churches .5) use of church institutions for public functions. 6) restriction of political participation to members of the established church” . The absolute line between any religious involvement with the government was not part of their thinking and has only become prevalent in the century.
They make a very good case, using lots of historical evidence. They talk about Washington including calls to the Almighty and prayer in his official works. They also talk about Jefferson, the very heart of disestablishmentarianism (I've always wanted to use that word), allowing the Capitol to be used for services as there were not yet finished churches in DC. They also talk about Lincoln invoking religion as a means to heal the country after the Civil War. The Establishment Clause wasn't interpreted as absolute separation until the 1960s. That only lasted for a couple of decades, but hasn't yet reverted to the pre-Lemon v. Kurtz understanding.
They also delve into some very interesting issues and cases. For example, their disdain for the Lemon Test took an entire chapter, and then they returned to it occasionally for addition dismissal. They also looked at prayer in school and came to a conclusion that surprised me. They say that school is inherently coercive, which makes prayer in school coercive. But for issues of school funding for religious schools, there is more wiggle room if the schools are performing a service that the state should be doing but isn't. They look at other issues that had not even occurred to me, such as passive religious symbols and divisions of church property in the event of a split. It is fascinating stuff.
There was one other issue that will definitely require more research for me. They argued that using the 14th Amendments Due Process Clause to incorporate the First Amendment is inherently flawed, but that incorporating it through the Privileges and Immunities Clause works much better. They kind of shrug this off as a minor point and are happy that the disparate interpretations arrived at the same point which is now generally accepted. It is probably only a trivial point, but I would like to learn more on that.
I am definitely not a legal scholar, but I am a well-read layman on the First Amendment. I feel like I was the target audience because it had enough detail to enhance my understanding without overwhelming me with minutiae of legal points. I highly recommend this book if you like to get into understanding the Establishment Clause, its history and current interpretations.
Their argument is based partly on finding a more effective way to tamp down religious/political divisions in the United States, but more about a historical understanding of what the Framers meant by "establishment" and that their definition was largely used until well into the 20th century. According to the authors, there were six aspects of establishment that bothered the founding fathers: "1) control over doctrine, governance, and personnel of the church. 2) compulsory church attendance. 3) financial support. 4) prohibitions on worship in dissenting churches .5) use of church institutions for public functions. 6) restriction of political participation to members of the established church” . The absolute line between any religious involvement with the government was not part of their thinking and has only become prevalent in the century.
They make a very good case, using lots of historical evidence. They talk about Washington including calls to the Almighty and prayer in his official works. They also talk about Jefferson, the very heart of disestablishmentarianism (I've always wanted to use that word), allowing the Capitol to be used for services as there were not yet finished churches in DC. They also talk about Lincoln invoking religion as a means to heal the country after the Civil War. The Establishment Clause wasn't interpreted as absolute separation until the 1960s. That only lasted for a couple of decades, but hasn't yet reverted to the pre-Lemon v. Kurtz understanding.
They also delve into some very interesting issues and cases. For example, their disdain for the Lemon Test took an entire chapter, and then they returned to it occasionally for addition dismissal. They also looked at prayer in school and came to a conclusion that surprised me. They say that school is inherently coercive, which makes prayer in school coercive. But for issues of school funding for religious schools, there is more wiggle room if the schools are performing a service that the state should be doing but isn't. They look at other issues that had not even occurred to me, such as passive religious symbols and divisions of church property in the event of a split. It is fascinating stuff.
There was one other issue that will definitely require more research for me. They argued that using the 14th Amendments Due Process Clause to incorporate the First Amendment is inherently flawed, but that incorporating it through the Privileges and Immunities Clause works much better. They kind of shrug this off as a minor point and are happy that the disparate interpretations arrived at the same point which is now generally accepted. It is probably only a trivial point, but I would like to learn more on that.
I am definitely not a legal scholar, but I am a well-read layman on the First Amendment. I feel like I was the target audience because it had enough detail to enhance my understanding without overwhelming me with minutiae of legal points. I highly recommend this book if you like to get into understanding the Establishment Clause, its history and current interpretations.
December 31, 2024
This's part a history and part an argument about the religion clauses of the First Amendment. The argument is founded, cogently, in what an "establishment of religion" was: declaring one Established Church with special legal privileges and perhaps obligating worship according to it. So, Chapman argues, merely doing something which favors religion in some way shouldn't fall afoul of it.
I like his analysis, and it generally seems cogent. He criticizes much of the Supreme Court's recent jurisprudence as ad-hoc and generally offering bad incentives for civil society, and I can't disagree. Also, his analysis of the Fourteenth Amendment offers the best argument I've heard for actually incorporating the Establishment Clause against the states.
This's not a long book or detailed comprehensive analysis, but it's a good one, and probably better for not trying to be that.
I like his analysis, and it generally seems cogent. He criticizes much of the Supreme Court's recent jurisprudence as ad-hoc and generally offering bad incentives for civil society, and I can't disagree. Also, his analysis of the Fourteenth Amendment offers the best argument I've heard for actually incorporating the Establishment Clause against the states.
This's not a long book or detailed comprehensive analysis, but it's a good one, and probably better for not trying to be that.
November 4, 2023
The authors do an excellent job of laying out the intricacies, intents, and proper interpretation of the U.S.’s Establishment Clause. I plan to use this book as a reference concerning American religious rights guaranteed for a long time. Thank you to the other, especially Professor Nathan Chapman (my Law & Religion Professor at the University of Georgia School of Law).
June 2, 2025
Dec '24 - I am glad that I listened and even glad that I own the audio book. However, I suspect that my great-grandchildren will likely look upon the legal issues that swirl around the church/state issues of their day with no more clarity than I have today.
Jun '25 - But perhaps the very tension set up by the US Constitution is the best outcome that we might expect.
Jun '25 - But perhaps the very tension set up by the US Constitution is the best outcome that we might expect.
Displaying 1 - 6 of 6 reviews