Amicus Curiae Brief — Catholic Charities Bureau, Inc., et al., Petitioners v. Wisconsin Labor & Industry Review Commission, et al.

No. 24-154

In the

Supreme Court of the United States

CATHOLIC CHARITIES BUREAU, INC.;

BARRON COUNTY DEVELOPMENTAL

SERVICES, INC.; DIVERSIFIED SERVICES, INC.;

BLACK RIVER INDUSTRIES, INC.; and

HEADWATERS, INC.,

Petitioners,

v.

STATE OF WISCONSIN LABOR AND INDUSTRY

REVIEW COMMISSION and STATE OF

WISCONSIN DEPARTMENT OF WORKFORCE

DEVELOPMENT,

Respondents.

On Writ of Certiorari to the

Supreme Court of Wisconsin

BRIEF OF AMICUS CURIAE

NATIONAL LEGAL FOUNDATION

in Support of Petitioners

Steven W. Fitschen

James A. Davids

National Legal Foundation

524 Johnstown Road

Chesapeake, Va. 23322

(757) 463-6133

sfitschen@nationallegal

foundation.org

Frederick W. Claybrook, Jr.

(Counsel of Record)

Claybrook LLC

655 15th St., NW, Ste. 425

Washington, D.C. 20005

(301) 622-0360

rick@claybrooklaw.com

Counsel for Amicus Curiae

(i)

TABLE OF CONTENTS

Table of Authorities ...................................................iii

Statement of Interest.................................................. 1

Summary of Argument ............................................... 1

Argument .................................................................... 2

I.

Secular Courts Have No Authority to

Second-Guess the Sincere, Good-Faith

Determinations of Religious Organizations .... 2

II.

This Case Is Controlled by the Free Exercise

Clause, and This Court Should Not Rely on

the Establishment Clause When Reversing

the Decision Under Review.............................. 7

A.

The Establishment Clause Is Not

Properly Incorporated Under the

Fourteenth Amendment ............................... 9

B.

No Reliance Interests Support Continuing

the Improper Incorporation of the

Establishment Clause ................................ 14

1.

Church Autonomy Cases Are Fully

Supported Without an Incorporated

Establishment Clause ............................. 15

2.

Religious Question and Ministerial

Exception Precedent Is Fully Supported

( ii )

Without an Incorporated Establishment

Clause ...................................................... 19

3.

Religious Discrimination Cases Are

Fully Supported Without an

Incorporated Establishment Clause ...... 21

4.

Unwinding the Improper Incorporation of

the Establishment Clause Would

Eliminate the False Tension Between

It and the Free Exercise Clause Found in

Some Cases While Leaving Properly

Incorporated Clauses as a Check Against

State Action Coercing Religious

Observance .............................................. 23

5.

The States Have Uniformly Adopted .........

Anti-establishment Provisions, Almost

All by Constitution .................................. 27

CONCLUSION.......................................................... 28

( iii )

TABLE OF AUTHORITIES

Cases

Bouldin v. Alexander, 82 U.S. 131 (1872) ................ 17

Bradfield v. Roberts, 175 U.S. 291 (1899) ................ 13

Bronx Household of Faith v. Bd. of Educ. of N.Y.,

750 F.3d 184 (2d Cir. 2014) ................................... 27

Cantwell v. Conn., 310 U.S. 296 (1940) ............... 2, 12

Church of Lukumi Babalu Aye v. Hialeah,

508 U.S. 520 (1993) ............................................... 25

Combs v. Central Tex. Annual Conf. of the

United Meth. Church, 173 F.3d 343

(5th Cir. 1999) ....................................................... 19

Corp. of Presiding Bishop of Church of Jesus

Christ of Latter-day Saints v. Amos,

483 U.S. 327 (1987) ................................................. 7

Cutter v. Wilkinson, 544 U.S. 709 (2005) ................... 9

DeJonge v. Ore., 299 U.S. 353 (1937) ................. 17, 19

DeWeese-Boyd v. Gordon Coll., 163 N.E.3d 1000

(2021) ....................................................................... 5

Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1 (2004) ......................................... 9, 10, 11

Engel v. Vitale, 370 U.S. 421 (1962) ................... 14, 15

( iv )

Espinoza v. Montana Department of

Revenue, 591 U.S. 464 (2020) ............. 21, 22, 25, 28

Everson v. Board of Education,

330 U.S. 1 (1947) ............................... 2, 8-10, 12, 13,

15, 18, 22, 27-28

Follet v. McCormick, 321 U.S. 573 (1944) ................ 13

Fulton v. Philadelphia, 593 U.S. 522 (2021)...... 21, 22

Good News Club v. Milford Central Sch.,

533 U.S. 98 (2001) ................................................. 26

Gordon College v. DeWeese-Boyd,

142 S. Ct. 952 (2022) ............................................... 5

Hosanna-Tabor Evangelical Lutheran

Church and School v. EEOC,

565 U.S. 171 (2012) ....................... 4-7, 16, 19, 20-23

Jamison v. Tex., 318 U.S. 413 (1943) ....................... 13

Kedroff v. St Nicholas Cathedral of

Russian Orthodox Ch. in N. Am.,

344 U.S. 94 (1952) ................................. 7, 15, 16, 17

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ............................... 8, 25, 27, 28

Lamb’s Chapel v. Ctr. Moriches Union

Free Sch. Dist., 508 U.S. 384 (1993) ............... 10, 23

Largent v. Tex., 318 U.S. 418 (1943) ........................ 13

Lemon v. Kurtzman, 403 U.S. 602 (1971) .................. 8

(v)

Lyng v. Nw. Indian Cemetery Protective

Assn., 485 U.S. 439 (1988)..................................... 22

Marsh v. Ala., 326 U.S. 501 (1946) .......................... 13

McDaniel v. Paty, 435 U.S. 618 (1978)..................... 25

McDonald v. Chicago, 561 U.S. 741 n.20 (2010) ....... 9

Murdock v. Pa., 319 U.S. 105 (1943) ........................ 13

Natal v. Christian & Missionary Alliance,

878 F.2d 1575 (1st Cir. 1989) ................................ 19

Our Lady of Guadalupe School v.

Morrissey-Berru, 591 U.S. 732 (2020) .......... 6, 19-21

Petruska v. Gannon Univ., 462 F.3d 294

(3d Cir. 2006) ......................................................... 19

Presbyterian Church in the U.S. v.

Mary Elizabeth Blue Hull Mem’l

Presbyterian Church, 393 U.S. 440 (1969) ...... 16-17

Roman Catholic Diocese of Brooklyn v.

Cuomo, 592 U.S. 14 (2020) .................................... 22

Rosenberger v. Rector and Visitors of

Univ. of Va., 515 U.S. 819 (1995) .......................... 23

School District of Abington Township v. Schempp,

374 U.S. 203 (1963) ................................................. 9

Seattle’s Union Gospel Mission v. Woods,

142 S. Ct. 1094 (2022) ............................................. 5

Sherbert v. Verner, 374 U.S. 398 (1963) ................... 23

( vi )

Tandon v. Newsom, 593 U.S. 61 (2021) ............. 22, 28

Thomas v. Review Board,

450 U.S. 707 (1981) ....................................... 3, 4, 19

Tilton v. Richardson, 403 U.S. 672 (1971) ............... 23

Town of Greece v. Galloway,

572 U.S. 565 (2014) ........................................... 9, 26

Trinity Lutheran Church of Columbia, Inc.

v. Comer, 582 U.S. 449 (2017) ................... 21, 22, 25

Utah Hwy. Patrol Ass’n v. Am. Atheists, Inc.,

565 U.S. 994 (2011) ................................................. 9

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ............................................... 13

Wallace v. Jaffree, 472 U.S. 38 (1985)...................... 10

Watson v. Jones, 80 U.S. (13 Wall.)

679 (1872).................................................... 13, 16-18

Widmar v. Vincent, 454 U.S. 263 (1981) .................. 23

Woods v. Seattle’s Union Gospel Mission,

197 Wash. 2d 231, 481 P.3d 1060 (2021) ................ 5

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) ............................................ 9, 10

Constitutional Provisions

U.S. Const. art. VI, para. 2 ....................................... 24

( vii )

Other Authorities

Nikolas Bowie, The Constitutional Right of SelfGovernment, 130 Yale L.J. 1652 (2021)................. 17

The Cambridge Companion to the First Amend.

and Religious Liberty (Michael D. Breidenbach

& Owen Anderson eds., 2020) ................................ 8

Nathan S. Chapman, Adjudicating Religious

Sincerity, 92 Wash. L. Rev. 1185 (2017) ................. 4

Nathan S. Chapman & Michael W. McConnell,

Agreeing to Disagree: How the Establishment

Clause Protects Religious Diversity and

Freedom of Conscience (2023) ......................... 14, 24

Frederick W. Claybrook, Jr., The Time Is Ripe to

Disincorporate the Establishment Clause, 25

Federalist Soc’y Rev. 191 (2024) ....................... 8, 28

Robert Cord, Separation of Church and State:

Historical Fact and Current Fiction (1982) ............ 8

James A. Davids, Faith in Prison Programs, and Its

Constitutionality Under Thom. Jefferson’s Faithbased Initiative, 6 Ave Maria L. Rev. 341 (2008)..10

Disestablishment and Religious Dissent:

Church-State Relations in the New

American States, 1776-1833, 3-17 (Carl H.

Esbeck & Jonathan J. Den Hartog,

eds. 2019). ............................................................ 28

( viii )

Carl H. Esbeck, The Establishment Clause: Its

Original Public Meaning and What We Can

Learn from the Plain Text, 22 Federalist

Soc’y Rev. 26 (2021).................................................. 8

Carl. H. Esbeck, An Extended Essay on Church

Autonomy, 22 Federalist Soc’y Rev. 244 (2021)...... 3

Steven W. Fitschen, From Civil Rights to Blackmail:

How the Civil Rights Attorney’s Fees Act of 1976

(42 U.S.C. § 1988) Has Perverted One of America’s

Most Historic Civil Rights Statutes, 29 Wm. &

Mary Bill of Rights J. 107 (2021) .......................... 11

Philip Hamburger, Separation of Church and State

(2002) ....................................................................... 8

John D. Inazu, Liberty’s Refuge: The Forgotten

Freedom of Assembly (2012)………………………..17

Leonard Levy, The Establishment Clause: Religion

and the First Amendment (1986) ........................... 8

Michael W. McConnell, Religion & Constitutional

Rights: Why Is Religious Liberty the “First

Freedom”?, 21 Cardozo L. Rev. 1243, 1245-46

(2000) ....................................................................... 3

Memorial and Remonstrance Against Religious

Assessments, in Selected Writings of James

Madison 21 (R. Ketcham ed. 2006) ......................... 3

Vincent Phillip Muñoz, The Original

Meaning of the Establishment Clause and the

Impossibility of Its Incorporation, 8 U. Pa. J.

Const. L. 585 (2006)........................................... 8, 11

( ix )

Robert J. Renaud & Lael D. Weinberger, Spheres of

Sovereignty: Church Autonomy Doctrine & the

Theological Heritage of the Separation of Church

& State, 35 N. Ky. L. Rev. 67 (2008) ....................... 3

3 Joseph Story, Commentaries on the Const. of the

U.S. (1833) ....................................................................15

John Witte Jr. & Justin Latterell, The Last

American Establishment, The Cambridge

Companion, ch. 21.……………………………….28

1

STATEMENT OF INTEREST1

The National Legal Foundation (NLF) is a

public interest law firm dedicated to the defense of

First Amendment liberties and the restoration of the

moral and religious foundation on which America was

built. The NLF and its donors and supporters,

including those in Wisconsin, seek to ensure that

First Amendment freedoms are protected in all

places.

SUMMARY OF ARGUMENT

This case demonstrates the need for a vibrant

understanding and application of the church

autonomy doctrine: a secular court has decided that

Catholic Charities is not performing “typically

religious” work, even though the charity’s work has

traditionally been performed as a religious ministry

and is still considered to be so by the sponsoring

church. Stating the holding should, and must, defeat

it.

We write not to repeat the advocacy of the

Petitioners and other amici that the decision of the

Supreme Court of Wisconsin cannot stand under the

United States Constitution.

We make two,

complementary points.

First, this Court should begin to see its

1 No counsel for any party authored this brief in whole

or in part. No person or entity other than amicus and

its counsel made a monetary contribution intended to

fund the preparation or submission of this brief.

2

precedent in the church autonomy area, including in

its ministerial exception cases, as a whole. It should

reinvigorate its longstanding holdings that secular

courts may not second-guess religious organizations

when they determine the workings of their ministries,

as long as those determinations are sincere.

Second, this Court should recognize that the

church autonomy doctrine is satisfactorily founded

upon the Free Exercise Clause alone. This Court

improperly incorporated the Establishment Clause in

Everson v. Board of Education of Ewing,2 and it

should not rely on the Establishment Clause in its

decision here, unnecessarily reinforcing Everson’s

error.

ARGUMENT

I.

Secular Courts Have No Authority to

Second-Guess the Sincere, Good-Faith

Determinations of Religious Organizations

At bottom, the error of the Supreme Court of

Wisconsin was to second-guess the sincere, good-faith

decision of Catholic Charities that its offered services

to the poor were an extension of its religious duties

and beliefs. The court trespassed on forbidden

330 U.S. 1 (1947). While the Court in Cantwell v.

Connecticut, 310 U.S. 296 (1940), quoted both Religion

Clauses of the First Amendment and referred to them as

having been incorporated through the Fourteenth

Amendment, id. at 303, it did not specifically refer to the

Establishment Clause as having been incorporated until

its decision in Everson.

2

3

territory.

From the beginning of the Republic, churches

have been responsible for and subject to their own

polity and praxis, with which the government has

neither the aptitude nor the authority to interfere.3 A

key teaching in this area of the law, collectively

denominated as “church autonomy doctrine,”4 is that

secular courts do not have the wherewithal to

evaluate church beliefs and practices. As this Court

stated in Thomas v. Review Board,5

The determination of what is a “religious” belief

or practice is more often than not a difficult and

delicate task . . . . However, the resolution of

that question is not to turn upon a judicial

perception of the particular belief or practice in

question; religious beliefs need not be

acceptable,

logical,

consistent,

or

comprehensible to others in order to merit First

Amendment protection.

....

3 See, e.g., Memorial and Remonstrance Against Religious

Assessments, in Selected Writings of James Madison 21,

24 (R. Ketcham ed. 2006) (the idea that a “Civil Magistrate

is a competent Judge of Religious truth” is “an arrogant

pretension” that has been “falsified”); see generally Michael

W. McConnell, Religion & Constitutional Rights: Why Is

Religious Liberty the “First Freedom”?, 21 Cardozo L. Rev.

1243, 1245-46 (2000); Robert J. Renaud & Lael D.

Weinberger, Spheres of Sovereignty: Church Autonomy

Doctrine & the Theological Heritage of the Separation of

Church & State, 35 N. Ky. L. Rev. 67, 71-72 (2008).

4 See Carl. H. Esbeck, An Extended Essay on Church

Autonomy, 22 Federalist Soc’y Rev. 244 (2021).

5 450 U.S. 707 (1981).

4

Courts are not

interpretation.6

arbiters

of

scriptural

When this is true for individuals, as in Thomas, it

must be all the more true for established religious

organizations. The only legitimate probe for a secular

court in such a situation is to assure itself that the

religious organization’s claims are made sincerely or,

as it is sometimes put, honestly or in good faith.7

This Court has strayed slightly from this

touchstone in its ministerial exception cases. This

precedent is an outworking and subset of the church

autonomy doctrine, as this Court correctly recognized

from its initial opinion in the area in Hosanna- Tabor

Evangelical Lutheran Church and School v. EEOC8

that, once the religious organization’s choice of a

minister in its employ is found to be legitimate, then

the organization’s choice is sacrosanct, so to speak,

i.e., it is authoritative and cannot be overcome by any

balancing of secular interests against those of the

organization.9

This Court strayed, though, in Hosanna-Tabor

in this respect: its factual analysis to determine if the

teacher involved there was appropriately deemed a

“minister” of the church and school gave leeway to the

6 Id. at 714, 716.

7 Id. at 716 (“honest conviction”); see generally Nathan S.

Chapman, Adjudicating Religious Sincerity, 92 Wash. L.

Rev. 1185 (2017).

8 565 U.S. 171 (2012).

9 Id. at 196. (“[T]he First Amendment has struck the

balance for us. The church must be free to choose those who

will guide it on its way.”); see Esbeck, supra note 4.

5

courts to assess for themselves whether a particular

position is “central” or “religious” enough to qualify.

Some courts have relished the task, showing a

somewhat remarkable blindness for how religions

operate by engaging in the presumption, as the

Supreme Court of Wisconsin did here, that, when the

government or secular entities have begun providing

services, even when religious entities have performed

them first and for years, those services are no longer

primarily “religious,” even when performed by

religious organizations.10

To the extent that this Court’s factual analysis

in Hosanna-Tabor focused only on the honesty and

sincerity of the religious organization’s requirement

that the employee share its religious beliefs, that

Good examples are provided by the Massachusetts

Supreme Judicial Court in DeWeese-Boyd v. Gordon

College, 163 N.E.3d 1000 (2021), in which that court

second-guessed the Christian college in holding that a

social work professor’s position and duties, which included

integrating the Christian faith into her teaching and

scholarship, were not “religious” enough to qualify her as a

“minister” for the exception, and the Supreme Court of

Washington in Woods v. Seattle’s Union Gospel Mission,

197 Wash. 2d 231, 481 P.3d 1060 (2021), in which that

court thought further factual development was needed as

to whether an applicant for a lawyer position serving in the

non-profit, Christian legal aid center was a “minister.”

Justices of this Court issued statements when denying

petitions for certiorari in both cases. See Gordon College v.

DeWeese-Boyd, 142 S. Ct. 952 (2022) (Alito, J., joined by

Thomas, Kavanaugh, and Barrett, JJ.); Seattle’s Union

Gospel Mission v. Woods, 142 S. Ct. 1094 (2022) (Alito, J.,

joined by Thomas, J.).

10

6

analysis was appropriate.11 Obviously, a secular court

is no better positioned to determine that question

than whether a church as part of its religious ministry

should aid the poor in a certain way. And, in its more

recent ministerial exception case, Our Lady of

Guadalupe School v. Morrissey-Berru,12 this Court

appropriately gave greater weight to the decision of

the religious organization as to whom its ministers

are:

In a country with the religious diversity of the

United States, judges cannot be expected to

have

a

complete

understanding

and

appreciation of the role played by every person

who performs a particular role in every

religious tradition. A religious institution’s

explanation of the role of such employees in the

life of the religion in question is important.13

Your amicus submits that, consistent with

other precedents of this Court, a religious

organization’s good faith decision as to its mission and

employees dedicated to that admission is more than

simply “important”; it is conclusive. As this Court has

acknowledged, religious institutions have the “power

See Hosanna-Tabor, 565 U.S. at 196 (Thomas, J.,

concurring) (“the Religion Clauses require civil courts to

apply the ministerial exception and to defer to a religious

organization’s good-faith understanding of who qualifies as

its minister”); id. at 199, 205-06 (Alito, J., concurring)

(exception applies if “religious group believes” employee

performs key functions described; judiciary may not

second-guess church’s doctrine of internal dispute

resolution).

12 591 U.S. 732 (2020).

13 Id. at 757.

11

7

to decide for themselves, free from state interference,

matters of church government as well as those of faith

and doctrine.”14

The church autonomy doctrine is undergirded

by a simple, albeit profound, principle: the secular

courts have neither the competence nor authority to

invalidate or invade a religious organization’s

determination as to the scope of its beliefs and

practices and the selection of those who perform its

religious functions. The Supreme Court of Wisconsin

violated that principle, and its decision must be

reversed.

II.

This Case Is Controlled by the Free

Exercise Clause, and This Court Should

Not Rely on the Establishment Clause

When Reversing the Decision Under

Review

This Court when ruling in this case should not

rely on the Establishment Clause. It is an open secret

that this clause was wrongly incorporated through the

14 Kedroff v. St Nicholas Cathedral of Russian Orthodox

Ch. in N. Am., 344 U.S. 94, 116 (1952) (quoted in HosannaTabor, 565 U.S. at 186); see also Corp. of Presiding Bishop

of Church of Jesus Christ of Latter-day Saints v. Amos, 483

U.S. 327, 339 (1987) (noting that a court is not equipped to

determine what duties are “secular” and what are

“religious” as it would be an “intrusive inquiry into

religious belief”); id. at 342-43 (Brennan, J., concurring)

(“if certain activities constitute part of a religious

community’s practice, then a religious organization should

be able to require that only members of its community

perform those activities”).

8

Fourteenth Amendment,15 and, although this case

does not provide the vehicle to overrule Everson, this

Court should embrace a suitable opportunity to do so.

In the meantime, it should stop relying on the clause

as if it were properly incorporated, similar to the way

that this Court stopped using the now abrogated

Lemon test.16 This Court’s recent interpretations of

the Free Exercise Clause confirm that it, buttressed

by its complementary Rights of Free Speech and

Assembly, is alone sufficient to sustain a robust

protection for church autonomy and other religious

freedoms.

See Frederick W. Claybrook, Jr., The Time Is Ripe to

Disincorporate the Establishment Clause, 25 Federalist

Soc’y Rev. 191 (2024); Carl H. Esbeck, The Establishment

Clause: Its Original Public Meaning and What We Can

Learn from the Plain Text, 22 Federalist Soc’y Rev. 26

(2021); The Cambridge Companion to the First Amend.

and Religious Liberty (Michael D. Breidenbach & Owen

Anderson eds., 2020) (hereinafter “The Cambridge

Companion”); Vincent Phillip Muñoz, The Original

Meaning of the Establishment Clause and the Impossibility

of its Incorporation, 8 U. Pa. J. Const. L. 585 (2006); Philip

Hamburger, Separation of Church and State (2002);

Leonard Levy, The Establishment Clause: Religion and the

First Amendment (1986); Robert Cord, Separation of

Church and State: Historical Fact and Current Fiction

(1982).

16 See Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 53042 (2022) (noting that the test of Lemon v. Kurtzman, 403

U.S. 602 (1971), had not been used by this Court in a

decade and criticizing lower court for continuing to apply

it).

15

9

A. The Establishment Clause Is Not Properly

Incorporated Under the Fourteenth

Amendment

In early America, the states controlled the

question of whether to establish a specific religion,

and the First Amendment prohibited Congress from

getting involved. This Court’s incorporation of the

Establishment Clause turned this original purpose on

its head. After Everson, the states were prohibited

from aiding religion. At least two justices have

directly commented on this incongruence, most

notably Justice Thomas,17 and multiple justices have

17 Town of Greece v. Galloway, 572 U.S. 565, 606 n.1 (2014)

(Thomas, J., concurring in part and concurring in the

judgment); see also, e.g., Elk Grove Unified Sch. Dist. v.

Newdow, 542 U.S. 1, 50-51 (2004) (Thomas, J., concurring)

(noting that the Establishment Clause is a federalism

provision designed to keep the national government out of

establishment matters and that, at least on its face, it does

not protect individual rights); Utah Hwy. Patrol Ass’n v.

Am. Atheists, Inc., 565 U.S. 994, 1007 (2011) (Thomas, J.,

dissenting from denial of cert.); McDonald v. Chicago, 561

U.S. 741, 876 n.20 (2010) (Thomas, J., concurring in part

and concurring in the judgment); Cutter v. Wilkinson, 544

U.S. 709, 726-29 (2005) (Thomas, J., concurring); Zelman

v. Simmons-Harris, 536 U.S. 639, 678-80 (2002) (Thomas,

J., concurring). Justice Stewart, sixteen years after

Everson, in School District of Abington Township v.

Schempp, 374 U.S. 203 (1963), noted incorporation’s

incongruence with the original federalism purpose of the

clause: “the Fourteenth Amendment has somehow

absorbed the Establishment Clause, although it is not

without irony that a constitutional provision evidently

designed to leave the States free to go their own way should

now have become a restriction upon their autonomy.” Id.

at 310 (Stewart, J., dissenting).

10

commented on the confused state of this Court’s

Establishment Clause precedent in the wake of

Everson.18

The Establishment Clause varies in kind from

other rights incorporated through the Fourteenth

Amendment. Indeed, it is not described as a freedom

or a right at all. It is nonsensical to suggest that the

Constitution recognized a right in an individual to

either regulate a state establishment or not to

establish a national religion. Establishments are by

definition the work of governments, not individuals.19

Thus, the interests protected by the Establishment

Clause do not fit neatly into the rationale supporting

incorporation under the Fourteenth Amendment.

That amendment, by its terms, protects individual

See, e.g., Wallace v. Jaffree, 472 U.S. 38, 107 (1985)

(Rehnquist, J., dissenting) (“[I]n the 38 [now 78] years

since Everson our Establishment Clause cases have been

neither principled nor unified.”); Zelman v. SimmonsHarris, 536 U.S. 639, 688 (2002) (Souter, J., dissenting);

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508

U.S. 384, 399 (1993) (Scalia, J., concurring in the

judgment); see generally James A. Davids, Faith in Prison

Programs, and Its Constitutionality Under Thom.

Jefferson’s Faith-based Initiative, 6 Ave Maria L. Rev. 341,

382-86 (2008).

19 See Esbeck, supra note 15, at 38 (“[T]he object of the

participial phrase ‘respecting an establishment’ is not

about acknowledging an intrinsic human right, but is a

reference to a discrete subject matter (‘an establishment of

religion’) that is being placed off limits to or outside the

government’s authority.”); see also Elk Grove, 542 U.S. at

50-51 (Thomas, J., concurring) (“The Establishment

Clause does not purport to protect individual rights.”)

18

11

rights. But the Establishment Clause is a structural

provision; in other words, it is a provision directed to

governments that was expressly designed to protect

the rights of state governments against encroachment

by the federal government.20 To infer an individual

right not to have a state establish a religion turns the

Establishment Clause inside out, allowing that

alleged individual right to override the protection the

clause expressly gave to state governments to

establish religion. To maintain the original meaning

and purpose of the clause, any individual right

emanating from the Establishment Clause would

have to be limited to a right to prohibit the federal

government from establishing a national religion.21

But incorporation would not be needed to vindicate

such a right. The clause itself, combined with existing

See Elk Grove, 542 U.S. at 50-53 & n.4 (Thomas, J.,

concurring); see also Muñoz, supra note 15; Esbeck, supra

note 15, at 38 (“This difference in the nature of these

participial phrases [in the Free Exercise and

Establishment Clauses] leads to a difference in their

function: creating a structural relationship versus

acknowledging an intrinsic right.”); Steven W. Fitschen,

From Civil Rights to Blackmail: How the Civil Rights

Attorney’s Fees Act of 1976 (42 U.S.C. § 1988) Has

Perverted One of America’s Most Historic Civil Rights

Statutes, 29 Wm. & Mary Bill of Rights J. 107, 150-55

(2021) (discussing scope of Privileges or Immunities Clause

of the Fourteenth Amendment and marshalling evidence

that the Framers did not consider the Establishment

Clause to contain personal rights covered by the

amendment).

21 See Elk Grove, 542 U.S. at 51 (Thomas, J., concurring)

(suggesting the Establishment Clause at most arguably

contains that individual right).

20

12

standing rules, would enable complainants to sue

under the federal Establishment Clause to prevent

the establishment of a national religion.22

The Everson Court did not identify and attempt

to resolve these anomalies of incorporation of the

Establishment Clause. It recited the reasons for

incorporation of the Free Exercise Clause in

protecting individual rights and simply concluded,

There is every reason to give the same

application and broad interpretation to the

“establishment of religion” clause. The

interrelation of these complementary clauses

was well summarized in a statement of the

Court of Appeals of South Carolina, quoted

with approval by this Court in Watson v. Jones,

13 Wall. 679, 730: “The structure of our

government has, for the preservation of civil

liberty, rescued the temporal institutions from

religious interference. On the other hand, it has

secured religious liberty from the invasion of

the civil authority.”23

This reasoning is unpersuasive. The free exercise

cases upon which Everson relied protected only

individual rights, most of them invalidating

restrictions against door-to-door evangelism by

individuals and West Virginia State Board of

See Carl H. Esbeck, The Establishment Clause as a

Structural Restraint: Validations and Ramifications, 18

J.L. & Politics (UVa) 445 445 (2002) (collecting Establishment Clause standing cases to vindicate it as a

structural restraint).

23 Everson, 330 U.S. at 14-15 (footnotes omitted).

22

13

Education v. Barnette protecting school children from

being forced to salute the flag.24 Ironically, the

Everson Court recognized all of these as dealing with

“an individual’s religious freedom.”25 And the very

language the Everson Court quoted from Watson v.

Jones recognized that the Establishment Clause

provided, not an individual right, but a structural

restraint.26 The Everson Court certainly did not

grapple with the central issue: when a major purpose

of the Establishment Clause was to keep the federal

government’s hands off how the States dealt with

establishing religion—i.e., when it was required to

allow pro-establishment actions by the States—how

could it possibly be proper to convert that shield for

the States into a sword granting the federal

government

jurisdiction

to

forbid

their

establishments?27 And this Court since Everson has

24 See id. at 15 n.22 (citing Cantwell, 310 U.S. 296 (door-to-

door evangelization by individuals); Jamison v. Tex., 318

U.S. 413 (1943) (same); Largent v. Tex., 318 U.S. 418 (1943)

(same); Murdock v. Pa., 319 U.S. 105 (1943) (same); Follet

v. McCormick, 321 U.S. 573 (1944) (same); Marsh v. Ala.,

326 U.S. 501 (1946) (same); W. Va. State Bd. of Educ. v.

Barnette, 319 U.S. 624 (1943) (forced flag salute by

individuals struck down as compelled speech)). The

Everson Court also cited for support Bradfield v. Roberts,

175 U.S. 291 (1899), with a “cf.” signal. Bradfield upheld

incorporation of a Catholic hospital by the District of

Columbia against an Establishment Clause attack. D.C. is

a federal territory, not a state, and so this decision is

irrelevant to the incorporation question.

25 330 U.S. at 15 (emphasis added).

26 Id. (recognizing that the “structure of our government”

provides for separate spheres of civil and religious

authority).

27 See Schempp, 374 U.S. at 310 (Stewart, J., dissenting).

14

neither attempted to answer that fundamental

question nor made any principled defense of its

incorporation of the Establishment Clause.

B. No Reliance Interests Support Continuing

the Improper Incorporation of the

Establishment Clause

Some commentators, while acknowledging the

improper incorporation of the Establishment Clause,

also note that incorporation has had the benefit of

protecting some individual rights.28 This assertion is

invalid. In a similar vein, and equally invalidly, this

Court in Engel v. Vitale29 pointed to its view of a

favorable result to justify striking down New York

State’s prayer for public school children as violative of

the Establishment Clause. It recounted the multiple

State establishments during the colonial period and

labeled it “an unfortunate fact of history” that the

States, often founded by nonconformists persecuted in

their native lands, would almost uniformly favor by

law their own religious beliefs when they achieved

political power in the colonies, a favoritism that

continued in most nascent States.30

But simply liking the anti-establishment result

does not provide a principled basis for overriding the

E.g., Nathan S. Chapman & Michael W. McConnell,

Agreeing to Disagree: How the Establishment Clause

Protects Religious Diversity and Freedom of Conscience

(2023) (hereinafter “Agreeing to Disagree”); Esbeck, supra

note 15, at 39.

29 370 U.S. 421 (1962).

30 Engel, 370 U.S. at 426-29.

28

15

purpose of the clause to protect state prerogatives.

The Establishment Clause, while preventing

the federal government from putting its weight

behind any particular denomination, also protected

the rights of the states to make up their own minds on

the matter.31 And the inference that disincorporating

the Establishment Clause would upset substantial

expectations or reliance interests in this area is also

unfounded. Where compulsion is involved, the results

praised by the Engel Court and the commentators can

be accomplished by the protections afforded by the

properly incorporated Free Speech, Free Exercise,

and Freedom of Assembly Clauses of the First

Amendment, particularly as those rights have been

explained in more recent precedent of this Court.

1. Church Autonomy Cases Are Fully

Supported Without an Incorporated

Establishment Clause

Church autonomy precedent predates Everson,

and it does not rely on the Establishment Clause, but,

rather, the Free Exercise and Peaceable Assembly

Clauses. This Court, in Kedroff v. St Nicholas

Cathedral, observed that the Constitution provides “a

spirit of freedom for religious organizations, an

31 Justice Joseph Story in his Commentaries wrote that an

attempt by the federal government to disallow the states

from favoring Christianity officially—as many of them did

when the Establishment Clause was adopted—would have

“created universal disapprobation,” and that “the general,

if not universal, sentiment” at the time was “that

Christianity ought to receive encouragement from the

state.” 3 Joseph Story, Commentaries on the Const. of the

U.S. 78 (1833).

16

independence from secular control or manipulation—

in short, power to decide for themselves, free from

state interference, matters of church government as

well as those of faith and doctrine.”32

The Kedroff Court identified the constitutional

font for its pronouncement solely as the Free Exercise

Clause. Looking back to Watson v. Jones,33 the

progenitor of the doctrine that applied federal

common law, the Kedroff Court observed that Watson

radiates . . . a spirit of freedom for religious

organizations, an independence from secular

control or manipulation, in short, power to

decide for themselves, free from state

interference, matters of church government as

well as those of faith and doctrine. Freedom to

select the clergy, where no improper methods of

choice are proven, we think, must now be said

to have federal constitutional protection as a

part of the free exercise of religion against state

interference.34

344 U.S. 94, 116 (1952) (footnote omitted); see also

Serbian E. Orthodox Diocese for U.S. and Can. v.

Milivojevich, 426 U.S. 696, 713-14, 724 (1976). Milivojevich

also did away with the ability of courts to determine

whether an internal church decision was “arbitrary,” as it

would intrude into religious questions beyond a secular

court’s ken, leaving courts only able to review church

decisions for collusion and fraud. See id. at 712-16.

33 80 U.S. (13 Wall.) 679 (1872). The Court’s more recent

decision in Hosanna-Tabor Evangelical Lutheran Church

and School v. EEOC also relied on Watson v. Jones. 565

U.S. 171, 185 (2012).

34 344 U.S. at 116 (footnote omitted) (emphasis added); see

also Presbyterian Church in the U.S. v. Mary Elizabeth

32

17

In Kedroff, this Court also “converted the principle of

Watson . . . into a constitutional rule.”35

While some of this Court’s later church

autonomy cases identified the constitutional locus of

the that doctrine more generally as found in the “First

Amendment” generically,36 the fact remains that this

Court in Kedroff found the Free Exercise Clause

wholly sufficient to support the doctrine. And there is

no reason why the Free Exercise Clause would be

inadequate for this task, especially when augmented

by the incorporated Free Speech Clause and the

Peaceable Assembly Clause, the latter of which

protects the associational rights of individuals and

institutions.37 Indeed, Watson itself echoed the

protections of those clauses:

Laws then existed upon the statute-book [in

England] hampering the free exercise of

religious belief and worship in many most

oppressive forms, and though Protestant

Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 446

(1969) (noting that Watson had “a clear constitutional

ring”).

35 Presbyterian Church, 393 U.S. at 447.

36 See, e.g., Milivojevich, 426 U.S. at 712; Presbyterian

Church, 393 U.S. at 449.

37 See DeJonge v. Ore., 299 U.S. 353, 364 (1937); compare

id. with Bouldin v. Alexander, 82 U.S. 131, 139-40 (1872)

(“[W]e cannot decide who ought to be members of the

church, nor whether the excommunicated have been

regularly or irregularly cut off.”); see generally Nikolas

Bowie, The Constitutional Right of Self-Government, 130

Yale L.J. 1652 (2021); John D. Inazu, Liberty’s Refuge: The

Forgotten Freedom of Assembly (2012).

18

dissenters were less burdened than Catholics

and Jews, there did not exist that full, entire,

and practical freedom for all forms of religious

belief and practice which lies at the foundation

of our political principles. . . .

In this country, the full and free right to

entertain any religious belief, to practice any

religious principle, and to teach any religious

doctrine which does not violate the laws of

morality and property, and which does not

infringe personal rights, is conceded to all. . . .

The right to organize voluntary religious

associations to assist in the expression and

dissemination of any religious doctrine, and to

create tribunals for the decision of controverted

questions of faith within the association . . . is

unquestioned. All who unite themselves to such

a body do so with an implied consent to this

government, and are bound to submit to it. But

it would be a vain consent and would lead to the

total subversion of such religious bodies, if any

one aggrieved by one of their decisions could

appeal to the secular courts and have them

reversed.38

In the church autonomy context, the

incorporated Free Exercise, Free Speech, and

Peaceable Assembly Clauses operate cooperatively.

80 U.S. at 728-29 (emphasis added). Of course, even

without a constitutional underpinning, the Watson church

autonomy privilege would remain the law and not need

incorporation of the Establishment Clause to support it, as

Watson predated Everson.

38

19

These cognate freedoms39 do not need an incorporated

Establishment

Clause

to

protect

religious

associations from state interference.

2. Religious Question and Ministerial

Exception

Precedent

Is

Fully

Supported Without an Incorporated

Establishment Clause

Other subcategories of the church autonomy

doctrine are also adequately grounded in the Free

Exercise Clause. This Court in Thomas based its

application of the “religious question doctrine” that

prevents courts from making religious judgments

squarely and sufficiently on the employee’s free

exercise.40 This Court has claimed that the

ministerial exception rests on both clauses,41 but,

upon examination, it is clear that the Establishment

Clause adds nothing to what the Free Exercise Clause

(buttressed by the Free Speech and Peaceable

Assembly Clauses) protects. Indeed, before this Court

took up the issue, the First, Third, and Fifth Circuits

grounded their recognition of the ministerial

exception in the Free Exercise Clause alone.42

39 See DeJonge, 299 U.S. at 364 (“The right of peaceable

assembly is a right cognate to those of free speech and free

press and is equally fundamental.”).

40 Thomas, 344 U.S. at 116; see also Milivojevich, 426 U.S.

at 713-14, 724.

41 See Hosanna-Tabor, 565 U.S. at 184, 188-89; Our Lady,

591 U.S. at 745-47.

42 See Natal v. Christian & Missionary Alliance, 878 F.2d

1575, 1578 (1st Cir. 1989); Petruska v. Gannon Univ., 462

F.3d 294, 307 (3d Cir. 2006); Combs v. Central Tex. Annual

Conf. of the United Methodist Church, 173 F.3d 343, 345

(5th Cir. 1999).

20

In Hosanna-Tabor, this Court stated, “The

Establishment Clause prevents the Government from

appointing ministers, and the Free Exercise Clause

prevents it from interfering with the freedom of

religious groups to select their own.”43 Similarly, this

Court later said in the same opinion:

By imposing an unwanted minister, the state

infringes the Free Exercise Clause, which

protects a religious group’s right to shape its

own faith and mission through its

appointments. According the state the power to

determine which individuals will minister to

the faithful also violates the Establishment

Clause,

which

prohibits

government

involvement in such ecclesiastical decisions.44

This Court repeated in Our Lady, “State

interference in that sphere would obviously violate

the free exercise of religion, and any attempt by

government to dictate or even to influence such

matters would constitute one of the central attributes

of an establishment of religion.”45 One immediately

notices the overlap in coverage. When the Free

Exercise Clause “prevents [the government] from

interfering with the freedom of religious groups to

select their own” key employees, it necessarily stops

43 565 U.S. at 184. In this and other language recognizing

a religious organization as being a “group” or “association,”

this Court implicitly acknowledged that the ministerial

exception is also supported by the Freedom of Assembly

Clause.

44 Id. at 188-89.

45 591 U.S. at 745-47.

21

the government from “appointing” them, even though

this Court characterizes the Establishment Clause as

the source of the latter prohibition.46 When the Free

Exercise Clause forbids the government from

imposing an “unwanted” employee on the religious

organization, the Establishment Clause does no more

when it “prohibits government involvement in such

ecclesiastical decisions”47 or from “dictat[ing]” or

“influenc[ing]”

them.48

The

incorporated

Establishment Clause plays a duplicative, not a

necessary, role in such a case.

3. Religious Discrimination Cases Are

Fully Supported Without an Incorporated Establishment Clause

This Court, in a recent series of cases, has

reaffirmed that the government may not discriminate

against a religious organization solely because of its

religious nature. In Trinity Lutheran Church of

Columbia, Inc. v. Comer, it disallowed the state from

barring a church school from receiving a public benefit

solely because of its religious nature.49 In Espinoza v.

Montana Department of Revenue, this Court held that

the state could not deny tax credits for participation

in a school scholarship program solely because

religious schools would benefit.50 In Fulton v.

Philadelphia, it prohibited the city from refusing to

allow Catholic Social Services to continue to serve

foster care needs because of its religious beliefs about

46 Hosanna-Tabor, 565 U.S. at 184.

47 Id. at 188-89.

48 See Our Lady, 591 U.S. at 745-47.

49 582 U.S. 449 (2017).

50 591 U.S. 464 (2020).

22

same-sex marriage when the city could make

exceptions, in its discretion, for other perceived

violations of its anti-discrimination laws.51 And in

Tandon v. Newsom52 and Roman Catholic Diocese of

Brooklyn v. Cuomo,53 the Court instructed, in the

context of Covid-19 restrictions, that governments

may not treat secular activity more favorably than

comparable religious activity.

In none of these cases was the Establishment

Clause a necessary pillar supporting the decision;

indeed, in some cases, that clause was rejected as a

defense to the free exercise violations. The Court

based its decisions in Fulton, Tandon, and Brooklyn

Diocese expressly and solely on the Free Exercise

Clause.54 In Trinity Lutheran, it held that the Free

Exercise Clause does not allow a state to deny a

generally applicable benefit due to an individual’s or

organization’s religious status; it overrode a state

Establishment Clause defense in the process, even

citing Everson for the proposition.55 Similarly, in

Espinoza, the Court relied on the Free Exercise

Clause to override the State’s Blaine Amendment that

prohibits aid to sectarian schools,56 noting that the

51 593 U.S. 522 (2021).

52 593 U.S. 61 (2021).

53 592 U.S. 14 (2020).

54 Fulton, 593 U.S. at 532-36; Tandon, 593 U.S. at 62-64;

Brooklyn Diocese, 592 U.S. at 16.

55 Trinity Lutheran, 582 U.S. at 455-61.

56 591 U.S. at 474-78 (citing Lyng v. Nw. Indian Cemetery

Protective Assn., 485 U.S. 439, 449 (1988) (The Free

Exercise Clause protects against laws that ‘“penalize

religious activity by denying any person an equal share of

the rights, benefits, and privileges enjoyed by other

23

Establishment Clause “is not offended when religious

observers and organizations benefit from neutral

government programs.”57

In short, disincorporating the Establishment

Clause would not undercut the freedom of religious

organizations from discrimination due to their

religious nature and practice. Those freedoms are

independently and adequately supported by other

First Amendment protections properly incorporated

against the States through the Fourteenth

Amendment.

4. Unwinding

the

Improper

Incorporation of the Establishment Clause

Would Eliminate the False Tension

Between It and the Free Exercise

Clause Found in Some Cases While

Leaving

Properly

Incorporated

Clauses as a Check Against State

Action Coercing Religious Observance

It has become almost a hackneyed expression

that the Establishment and Free Exercise Clauses

sometimes work at cross-purposes.58 This perceived

citizens.’”); Sherbert v. Verner, 374 U.S. 398, 405 (1963)

(same)).

57 Id. at 474. The same is true when there is discrimination

against religious speech, press, and assembly. See Widmar

v. Vincent, 454 U.S. 263 (1981) (speech); Rosenberger v.

Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995)

(press); Lamb’s Chapel v. Ctr. Moriches Union Free Sch.

Dist., 508 U.S. 384 (1993) (assembly).

58 See, e.g., Hosanna-Tabor, 565 U.S. at 181 (citing Cutter,

544 U.S. at 719, and Tilton v. Richardson, 403 U.S. 672,

677 (1971) (plurality opinion)) (“Numerous cases

24

tension was not noticed until the Court began

incorporation under the Fourteenth Amendment, for

the simple reason that both the Free Exercise and

Establishment Clauses negated federal power.59 Once

the Court incorporated those clauses (and the Speech

and Assembly Clauses) against the states, however,

some potential for conflict arose. It became especially

acute during the reign of “strict separation,” as that

theory interpreted any government recognition of

religion or religious observance as a forbidden

“establishment,” even as it encroached on free

exercise and evenhanded treatment of religious

organizations when it came to otherwise available

public benefits.

With disincorporation of the Establishment

Clause, some tension would remain between state

anti-establishment interests and the properly

incorporated Free Exercise, Speech, and Assembly

Clauses, but the resolution of that tension will hardly

ever be in doubt: the federal provisions will trump

state ones when there is conflict,60 as “strictest

considered by the Court have noted the internal tension”

between the clauses.).

59 See generally Esbeck, supra note 15, at 37-38.

60 U.S. Const. art. VI, para. 2 (Supremacy Clause). It

appears that this potential tension was observed by

Congress during its consideration in 1875 of the federal

Blaine Amendment. The House version incorporated

against the states the language of both the Establishment

and Free Exercise Clauses: “No State shall make any law

respecting an establishment of religion or prohibiting the

free exercise thereof . . . .” The Senate amended the

proposal to prohibit it from being “construed to prohibit the

reading of the Bible in any school or institution.” See

Agreeing to Disagree, supra note 28, at 82-83.

25

scrutiny” will be applied.61 The stringency of that test

is demonstrated in Espinoza, where the Court

brushed aside as unworthy of consideration the state’s

proffered interest in having a greater-thanconstitutionally-required separation between church

and state by enforcing its “no aid to religion”

provision: “An infringement of First Amendment

rights, however, cannot be justified by a State’s

alternative view that the infringement advances

religious liberty. Our federal system prizes state

experimentation, but not ‘state experimentation in

the suppression of free speech,’ and the same goes for

the free exercise of religion.”62 Thus, any so-called

balancing of free exercise and anti-establishment

interests will be largely pro forma, as even state laws

championing anti-establishment interests carry no

weight against the First Amendment’s free exercise

protections.

The key to proper interpretation in these

contexts is to recognize the following balance struck

by our constitutional design: (a) we live in a diverse

society and must practice tolerance toward each

other, even when that means being exposed to people

and ideas with which we differ, especially if we are in

a minority; and (b) the properly incorporated clauses

of the First Amendment prohibit compelled or coerced

speech, religious exercise, and assembly. This Court

in Kennedy v. Bremerton School District made the

61 See Espinoza, 591 U.S. at 484 (citing Trinity Lutheran,

582 U.S. at 458; Church of Lukumi Babalu Aye v. Hialeah,

508 U.S. 520, 546 (1993); McDaniel v. Paty, 435 U.S. 618,

628 (1978)).

62 Id. (quoting Boy Scouts of Am. v. Dale, 530 U.S. 640, 660

(2000)).

26

toleration point, while rejecting a strict separation

view:

Respect

for

religious

expressions

is

indispensable to life in a free and diverse

Republic—whether those expressions take

place in a sanctuary or on a field, and whether

they manifest through the spoken word or a

bowed head. Here, a government entity sought

to punish an individual for engaging in a brief,

quiet, personal religious observance doubly

protected by the Free Exercise and Free Speech

Clauses of the First Amendment. And the only

meaningful justification the government

offered for its reprisal rested on a mistaken

view that it had a duty to ferret out and

suppress religious observances even as it

allows comparable secular speech. The

Constitution neither mandates nor tolerates

that kind of discrimination.63

63 597 U.S. at 542-44; see also Town of Greece, 572 U.S. at

566-67 (“From the Nation’s earliest days, invocations have

been addressed to assemblies comprising many different

creeds, striving for the idea that people of many faiths may

be united in a community of tolerance and devotion, even

if they disagree as to religious doctrine.”). This result was

nascent in the Court’s approach in Good News Club v.

Milford Central School, 533 U.S. 98 (2001), in which it

rejected an Establishment Clause challenge based on an

assertion that allowing a religious club after-school use on

the same basis as other clubs would constitute a prohibited

“endorsement”: “we cannot say the danger that children

would misperceive the endorsement of religion is any

greater than the danger that they would perceive a

hostility toward the religious viewpoint if the Club were

excluded from the public forum.” Id. at 118.

27

Of course, if the Establishment Clause had not been

incorporated improperly in Everson, in Coach

Kennedy’s case there would have been no “tension”

with the Free Exercise Clause to be manufactured,

even if unsuccessfully, by the school district and the

lower courts.64 The school district took no direct action

when he knelt at midfield after games; it only allowed

individual religious speech on an evenhanded basis,

and so no compulsion was present. If the school

district had required all team members to pray with

Coach Kennedy upon pain of benching, the Free

Speech Clause and Free Exercise Clauses would have

come into play to prohibit the school district from

compelling speech and religious exercise. The fact

that people voluntarily joined Coach Kennedy on the

field to show their support after the school district

threatened to fire him did not convert his practice into

state action.65

5. The States Have Uniformly Adopted

Anti-establishment Provisions, Almost

All by Constitution

Finally, disincorporating the Establishment

Clause will not harm any reliance interests or

instigate a regime of “anything goes” at the state level,

for the simple reason that all the states currently

64 Bronx Household of Faith v. Bd. of Educ. of N.Y., 750

F.3d 184 (2d Cir. 2014), is another example of a manifestly

incorrect decision defeating free exercise rights by use of

supposed Establishment Clause concerns. In Bronx

Household, New York City refused to allow a church to rent

school facilities for worship services after school hours

when the facilities were generally available for rent by

others.

65 See Kennedy, 597 U.S. at 540-42.

28

have their own religious freedom protections. When

the original States adopted the First Amendment,

several of them still had church establishments of one

variety or another.66 The trend was against them,

though, and in 1833 Massachusetts became the last

state to disestablish formally.67 Now, all States have

religious freedom protections in their constitutions,

including non-establishment provisions.68

CONCLUSION

Everson’s incorporation of the Establishment

Clause, seven decades ago, has the benefit of age. But

it was wrong from the start, and it has not aged

gracefully. Instead, it has involved the federal courts

in a multitude of state-action cases that State courts

are well equipped to handle under their own religious

freedom and anti-establishment principles. Moreover,

the First Amendment’s Free Exercise, Speech, and

Assembly Clauses provide oversight on improper

coercion or discrimination by the States, as this Court

has demonstrated repeatedly and recently in

Espinoza, Carson, Tandon, and Kennedy. The time is

ripe for this Court to overrule Everson and to

disincorporate the Establishment Clause.

Your amicus recognizes that that issue is not

66 See generally Disestablishment and Religious Dissent:

Church-State Relations in the New American States, 17761833, 3-17 (Carl H. Esbeck & Jonathan J. Den Hartog, eds.

2019).

67 See John Witte Jr. & Justin Latterell, The Last American

Establishment, in id. ch. 21, at 399-424.

68 See Claybrook, supra note 15, at 228-29 & n.191

(collecting all state constitutional religion clauses).

29

presented squarely in this case. But it is coming. Your

amicus urges this Court when deciding this case not

to rely unnecessarily on the improperly incorporated

Establishment Clause when reversing the Supreme

Court of Wisconsin’s violation of the Free Exercise

Clause.

Respectfully submitted this

3d day of February 2025,

/s/ Frederick W. Claybrook, Jr.

Frederick W. Claybrook, Jr.

(Counsel of Record)

Claybrook LLC

655 15th St., NW, Ste. 425

Washington, D.C. 20005

(301) 622-0360

rick@claybrooklaw.com

Steven W. Fitschen

James A. Davids

National Legal Foundation

524 Johnstown Road

Chesapeake, Va. 23322

(757) 463-6133

sfitschen@nationallegalfoundation.org