Book Review: “Agreeing to Disagree” by Nathan Chapman and Michael McConnell
Americans could agree to disagree at the founding, but not today.
Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience. By Nathan S. Chapman and Michael W. McConnell. New York, NT: Oxford University Press, 2023. 978-0-19-530466-4
Authors
Nathan Chapman is an experienced practitioner and an accomplished professor of law, presently the Associate Dean for Faculty Development and A. Gus Cleveland Distinguished Chair of Law at the University of Georgia School of Law, specializing in constitutional law and the intersection of law and religion. Chapman also graduated (in 2006) from Duke Divinity School with a Master of Theological Studies, focusing on the convergence of law, religion, and ethics. Such a background and personal interest make Chapman a capable contributor to a conversation about the First Amendment and religious freedom in America.
Michael McConnell has a similar legal and academic history, and his personal interest in constitutional law and religious liberty is akin to Chapman’s, but McConnell is older and has served as a circuit judge for the United States Court of Appeals for the Tenth Circuit (2002-2009). Thus, his legal and academic careers are more extensive, and his experience as a practitioner more significant. At present, McConnell is the Richard and Frances Mallery Professor of Law and Director of the Constitutional Law Center at the Stanford School of Law, focusing on constitutional law, religious liberty, and the separation of powers in America.
Neither Secularism Nor Religious Establishment
With this book, Chapman and McConnell provide readers with a legal history and commentary on the Establishment Clause of the First Amendment of the US Constitution. The authors’ thesis is, “the Establishment Clause is not a thumb on the scale for secularism in public matters… but a constitutional commitment for Americans to agree to disagree about matters of religion” (emphasis added).[1] Specifically, Chapman and McConnell argue that the Establishment Clause was an agreement to “refrain from using the power of government to coerce or induce uniformity of belief, whether that belief is Christian or non-Christian, secular or religious.”[2] Rather, “all faiths are free to flourish, or not, according to the zeal of their adherents and the appeal of their dogma – not according to the will of the majority, the power of elites, or the authority of the state.”[3] In conclusion, the authors eagerly welcome a return to the “freedom ensured by the Establishment Clause,” which they say “has facilitated the development of the most religiously heterogenous society the world has ever known.”[4]
Chapman and McConnell divide the book into two parts: Part One is a history of the Establishment Clause, detailing the circumstances and arguments surrounding its codification as law at the American founding, and Part Two offers legal commentary on the application of the Establishment Clause to modern controversies, beginning around the middle of the twentieth century. Both aspects of the First Amendment (i.e., contextual history and varying application) are critical to understanding what it means and how it has been interpreted by the Supreme Court (and lower courts) in America over the last two-hundred and fifty years. Religious freedom in America did not spring up from nowhere, and the present meaning and application of the Establishment Clause are directly affected by historical and legal developments.
Disestablishment and Renewed Establishment
One major contribution of this book to the discussion of the Establishment clause is Chapman’s and McConnell’s effort to define religious establishment as the framers of the First Amendment understood it. The authors write, “though the details differed by jurisdiction, establishments [at the time of the American founding] all relied on an array of legal devices designed to bring about religious uniformity and discourage dissent.”[5] These legal devices included “laws restricting public office to members of certain religious groups; laws requiring church membership, attendance, or financial support; and prohibitions on dissenting forms of worship.”[6] It is important to understand, as the author’s note, that “at the founding, a majority of the states had these sorts of laws and Americans understood them to be the essence of religious establishment.”[7] This implies not only that the definition of religious establishment was clear and understood, but also that the American founders did not reject religious establishment wholesale.
Chapman and McConnell outline six elements or categories of law that form a religious establishment: “(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; and (6) restriction of political participation to members of the established church.”[8] These elements are recognizable in most of the states at the time of the American founding since nine of the original thirteen included state-established religion in their state constitutions. Thus, the First Amendment (and the Establishment Clause in particular) was not a repudiation of religious establishment in total, but a specific rejection of federal establishment. The authors write, “Most scholars… conclude that the phrase ‘no law respecting an establishment of religion’ does two things: It broadly prevents any establishment of religion at the federal level… and it protects state establishments from federal interference.”[9]
Over the course of subsequent decades, however, all the states dismantled their religious establishments. Americans and their legislators overwhelmingly agreed that religion was good for society, but they largely came to perceive voluntary religious participation as the optimal approach. Not quite one-hundred years later, in 1868, the Fourteenth Amendment was added to the US Constitution, and Chapman and McConnell “are persuaded by the historians who argue that the architects [of that amendment] understood Section One to apply the individual freedoms set forth in the bill of rights to the states.”[10] In other words, it was the original intent of the Fourteenth Amendment to apply the prohibition of religious establishment to the states as well. Ultimately, the Supreme Court formalized this interpretation in 1948 (see Everson v. Board of Education).
As Chapman and McConnell describe (with historical, academic, and legal detail), the Supreme Court of the United States has been inconsistent since the mid-twentieth century with its varying decisions regarding religious disestablishment, religious liberty, and separation of church and state. The language of “separation” itself has a thin grounding in history and legal argument, but it has become the dominant metaphor and rationale in jurisprudence on the matter.[11] Furthermore, courts have sometimes (often?) applied disestablishment and separation, especially in more recent decades, as a thumb on the scale for secularism in America.
Chapman and McConnell oppose this religious antagonism, registering warnings and distinctions, such as Justice Goldberg’s warning “of a brooding and pervasive devotion to the secular and… hostility to the religious,”[12] or Chapman’s and McConnell’s own insistence that “neutrality and secularism are not the same thing.”[13] And yet, the authors do not seem to acknowledge the depth or breadth of the divide between secularism and religion (especially Christianity) or the apparent inevitability that one will dominate over the other in any given society. Indeed, secularism is now a new religious establishment in America.[14]
Where is the Agreement?
Chapman and McConnell write, “Our civil rights have no dependence on our religious opinions not because religion is irrelevant to civic life but because in a diverse liberal republic like the United States, our civil rights have no dependence on our adherence to any particular opinions, whatever they are” (emphasis added).[15] On this basis, Chapman and McConnell argue that neutrality is the key to unity in a pluralistic society, and they plead for a return to a proper understanding and comprehensive implementation of the Establishment Clause.[16] The authors write,
“If the Establishment Clause were properly understood and comprehensively implemented, its very existence would dampen the ferver of our extreme polarization, because it would guarantee that neither side can use its momentary political power to impose an orthodoxy and suppress disagreement. Each of us then could focus on living our own lives in accordance with conscience, expressing our beliefs to our children and to willing listeners, and evaluating public policies on their merits rather than on whether their adoption will empower ‘the other side.’”[17]
And yet, Chapman and McConnell seem at odds with the American founders and with epistemological logic. The American founders noted that our “unalienable Rights” are “endowed by [the] Creator,” and that “Governments are instituted among Men” to “secure these rights.”[18] Whatever one may argue regarding the definition of “Creator” in the minds of America’s founders, it is plain that they believed “rights” do utterly depend upon our adherence to a particular religious opinions, including at least the following: (1) that there is a creator, (2) that the creator has established a transcendental set of rights for humans in society together, and (3) that those rights are self-evident and securable by government. This is not necessarily religious establishment, but neither is this religious neutrality. One need not establish a church on these truth-claims, but one cannot unite with a citizenry who believes these truth-claims if they themselves do not share the same convictions.
Furthermore, Chapman and McConnell seem inconsistent with epistemological logic. They claim that neutrality on transcendentals or religious orthodoxy will allow citizens and legislators to evaluate public policies on their merits. However, merit is a question of goodness, virtue, and value, and such a question demands an ethical standard upon which to make an evaluation. Secularism has an ethical standard or rule (albeit a pragmatic and unstable one), and it is diametrically opposed to any religious standard (especially Christianity, which was the assumed standard at America’s founding). For example, there is no neutral position on abortion, since secularists believe that dependent human life in a mother’s womb is undeserving of dignity and protection and Christians (largely) believe that human life at every stage is worthy of dignity and protection. So too, secularists believe that gender is a social construct, independent of biological sex (indeed, many make the argument that biological sex must conform to one’s sense of gender), whereas Christians (largely) believe that sex and gender are inseparable features of God’s good and immutable design for humanity.
Chapman and McConnell claim (in their conclusion) that “The divisions between Baptists and Anglicans, Quakers and Presbyterians, New Lights and Old Lights… were every bit as intense as the divisions among far more diverse Americans today.”[19] It may be that the intensity of disagreement is similarly divisive in today’s American culture and society (including feverish arguments, political action, and social divisions), but given the facts on the ground, the comparison between Americans of the late eighteenth century and those of the early twenty-first century is laughable. At America’s founding, citizens divided over questions of secondary and tertiary theological matters – modes of worship, religious leadership, local church polity, and the role of institutional religion in public life (i.e., voluntarism or coercion). Today, Americans are divided over questions of fundamental theology and anthropology – the nature and dignity of man, the reality and knowability of a transcendent moral standard, the definition and value of marriage, and the virtue of societal norms.
Conclusion
Americans used to believe that civilization was built upon shared transcendent convictions, and they used to believe that America was particularly free and virtuous in the world because her convictions and resulting societal structures were superior to other nations. It is not our neutrality or our diversity alone that made us unique as a nation, but our unity on matters of virtue and human dignity and responsibility despite our differences. If we understand the Establishment Clause of the First Amendment to the US Constitution to be a legal demand for neutrality on matters of religious belief (i.e., theology or metaphysics), then secularism will inevitably maintain and extend its present domination of American culture and politics. If, however, we understand the Establishment Clause to be a legal check on government-established churches only, then Christians in America may yet recover at least some of the transcendent beliefs and virtues that once made our nation great among the rest.
[1] Chapman, Nathan S., and Michael W. McConnell. Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience. Inalienable Rights Series. New York: Oxford University Press, 2023. p. 6.
[2] Chapman and McConnell. Agreeing to Disagree. p. 6.
[3] Chapman and McConnell. Agreeing to Disagree. p. 6.
[4] Chapman and McConnell. Agreeing to Disagree. p. 188.
[5] Chapman and McConnell. Agreeing to Disagree. p. 10.
[6] Chapman and McConnell. Agreeing to Disagree. pp. 10-11.
[7] Chapman and McConnell. Agreeing to Disagree. p. 11.
[8] Chapman and McConnell. Agreeing to Disagree. p. 18.
[9] Chapman and McConnell. Agreeing to Disagree. p. 40.
[10] Chapman and McConnell. Agreeing to Disagree. p. 77.
[11] Daniel Dreisbach offers readers a compelling argument on Thomas Jefferson’s metaphor. Dreisbach, Daniel L. Thomas Jefferson and The Wall of Separation Between Church and State. New York: New York University Press, 2003.
[12] Chapman and McConnell. Agreeing to Disagree. p. 151.
[13] Chapman and McConnell. Agreeing to Disagree. p. 170.
[14] Secularism is a system of dogma (transcendent beliefs), ethics (behavioral standards), and categories of orthodoxy and heresy (including social, political, and economic penalties for heretics).
[15] Chapman and McConnell. Agreeing to Disagree. p. 48.
[16] Chapman and McConnell. Agreeing to Disagree. p. 189.
[17] Chapman and McConnell. Agreeing to Disagree. p. 189.
[18] “Declaration of Independence: A Transcription,” November 1, 2015. https://www.archives.gov/founding-docs/declaration-transcript.
[19] Chapman and McConnell. Agreeing to Disagree. p. 186.