Law professors discuss new book on religious freedom
The Center for Citizenship and Constitutional Government (CCCG) hosted “Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience” on November 8. The panel discussion between Nathan S. Chapman, Pope F. Brock Professor of Law at the University of Georgia School of Law, and Donald Drakeman, CCCG Distinguished Research Professor, focused on the legal, political, and philosophical origins of the Establishment Clause as well as its implications for modern political discourse.
The subject of the discussion was Chapman’s 2023 book, Agreeing to Disagree, which he co-authored with Michael W. McConnell, Director of the Constitutional Law Center at Stanford University. Chapman began the panel by arguing that the conventional idea of “separation of church and state” fails to accurately capture the meaning that the Framers intended in the writing of the Establishment Clause. This interpretation, he said, wrongly suggests that the church and state are at odds with one another. Rather, Chapman claims that they simply intended to prevent the federal government from incentivizing religious uniformity. The Establishment Clause, considered alongside the Free Exercise Clause, permits an “agreement to disagree” on religious matters.
As a historical matter, Chapman pointed out that half of the states retained some form of religious establishment at the time of the First Amendment’s adoption in 1791. Although the term “establishment of religion” would have been understood by everyone at the time it was added to the Constitution, Chapman and McConnell’s book aims to clarify how the Founder’s conceptions of the “establishment” and “free exercise” of religion have been understood in judicial interpretation and broader public discourse.
Drakeman, who joined the panel via Zoom, offered limited praise for the book, saying that the principles of agreeing to disagree “could be the future” as a way to make peace amidst America’s increasing political polarization, and hoped that Chapman’s work may help build the case for the conservative-controlled court system to move towards a stance more friendly to religious interests.
However, Drakeman thought that the book failed to go far enough in advocating for a more robust approach to religious freedom in the public square. He argued an even more narrow view of the Establishment Clause, arguing that the sole purpose of the clause was to prevent the federal government from establishing a national church. He also mentioned the idea that “no group can use its power to promote its religion . . . [represents] the establishment of Baptist theology.”
Instead, he said, the government can use political power to promote some religious ideas, as long as they do not establish a national church that clearly preferences one denomination over another. Drakeman argued a cohesive case for this view in his 2009 book Church, State, and Original Intent.
Junior John Soza, a Menard Family Tocqueville Fellow with the CCCG, related the event to one of his classes. He told the Rover, “The lecture helped crystallize some of the topics discussed in a class I am currently taking taught by Professor Muñoz on church and state issues.” Soza added that he “came away with a better understanding of how the Supreme Court is likely to rule in future cases” involving religious freedom.
The 2022 Supreme Court case Kennedy v. Bremerton School District was a focal point of the panel discussion. A landmark decision in the history of Establishment Clause jurisprudence, the case overturned the central element of the court’s 1971 decision in Lemon v. Kurtzman, which established the “Lemon Test,” a tripartite method of determining whether laws relating to religious expression were constitutional.
The subject of the Bremerton case was an attempt by the school district to prevent a high school football coach from praying on the field after games. While the Washington school district feared that the prayer would be viewed as a violation of the Establishment Clause, the court ruled 6-3 that the district had no right to restrict the coach. Both panelists spoke positively about the decision, concurring that it represented a move by the conservative-controlled court towards a more friendly stance on religion in the public sphere.
“I was particularly interested in the discussion of Kennedy v. Bremerton. The circumstances that Professor Chapman laid out related to prayer in the locker room versus prayer on the field made me rethink how I understood the case,” said Soza.
Junior Nathan Desautels explained that the panel made him more optimistic about the future of religion in America: “I thought that the panelists made strong legal arguments, which I hope the court will take into account in future cases. By moving towards a public culture which is more hospitable to religion, we will help make the way for a complete victory of Catholicism in political life.”
Mark Ballesteros is a senior from Westport, Connecticut studying finance. Currently president of the Notre Dame College Republicans, he describes himself as “the only real classical liberal” and a “Lee Kuan Yew enthusiast.” He can be reached at mballes2@nd.edu.
Photo Credit: University of Georgia School of Law
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