History and the School Prayer Cases

*Associate Professor of Law and McDonald Distinguished Fellow, Emory University School of Law. Thanks to Stephanie Barclay, Tom Berg, Alan Brownstein, Lou Cappozi, Nathan Chapman, Netta Barak-Corren, Katherine Mims Crocker, Marc DeGirolami, Kellen Funk, Sherif Girgis, Gabby Girgis, Steve Green, Michael Helfand, Tonja Jacobi, Doug Laycock, Kay Levine, Chris Lund, Bill Marshall, Michael McConnell, Jim Oleske, Trevor Pope, Micah Schwartzman, Nelson Tebbe, and John Witte, Jr. for helpful comments and conversation. Thanks also to participants in the Law & Religion Junior Faculty Conference at Notre Dame Law School, the Stanford Constitutional Law Center Colloquium, the Pepperdine Nootbaar Institute Fellows Workshop, the McDonald Distinguished Senior Fellows Conference, the Faculty Speaker Series at the University of North Carolina School of Law, and the Emory Law School Faculty Colloquium. Finally, thanks to the editors of the Virginia Law Review for their tireless work. Any errors are, of course, my own.Show More

In a series of two decisions known as the School Prayer Cases, the Supreme Court famously held that the Establishment Clause forbids state-sponsored prayer in public schools—even where the government provides opt-outs for dissenters. Yet subsequent legal developments have rendered those decisions unstable. And with the Court’s recent turn to “historical practices and understandings,” many question whether the School Prayer Cases can possibly survive.

It is too soon to tell where the Court’s renewed focus on Founding-era history might lead. But this Article contends, contrary to both some originalist Justices and their critics, that a focus on history does not spell the end of the School Prayer Cases. On the contrary, it may well place those decisions on firmer ground.

In a recent opinion, the Supreme Court observed that state-sponsored school prayer bears some relation to at least one “hallmark” of Founding-era establishments—namely, laws requiring citizens to attend worship in the established church. Contrary to what some Justices have suggested, however, the problem with these Founding-era laws was not that they lacked exemptions for dissenters. Rather, for the Founding generation, laws mandating attendance at state-sponsored worship were objectionable, opt-outs or no, because such laws exceeded the government’s rightful authority. On this view, the key feature of the School Prayer Cases is not the presence or absence of exemptions or proof of individual coercion. Instead, it is the government’s claimed right to mandate attendance at worship in the first place, no matter how tolerant the scheme. And understanding that point may offer important insight into larger questions about the propriety and limits of government-sponsored prayer, inside as well as outside of public schools.

Introduction

Speaking to a crowd on the morning of June 25, 1962, Justice Hugo Black’s voice quaked with emotion.¹ 1.See Roger K. Newman, Hugo Black: A Biography 522–23 (1994). The incident also appears in Andrew Koppelman, Defending American Religious Neutrality 67–68 (2013).Show More As he cradled a paper that shook slightly as he spoke, Justice Black uttered words that would become immortal: “The Establishment Clause thus stands as an expression of principle . . . that religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate.”² 2.Engel v. Vitale, 370 U.S. 421, 431–32 (1962) (quoting James Madison, Memorial and Remonstrance Against Religious Assessments, in 2 The Writings of James Madison 183, 187 (Gaillard Hunt ed., 1901)).Show More With that sentence and several that followed, Justice Black announced to the country that—contrary to most people’s expectations—the Establishment Clause forbade requiring public-school students to say a brief prayer during the school’s morning exercises.³ 3.See Corinna Barrett Lain, God, Civic Virtue, and the American Way: Reconstructing Engel, 67 Stan. L. Rev. 479, 507–14 (2015) (describing the outcry over Engel).Show More “[T]he right of the people to pray in their own way,” Justice Black added extemporaneously, “is not to be controlled by the election returns.”⁴ 4.Anthony Lewis, Supreme Court Outlaws Official School Prayers in Regents Case Decision, N.Y. Times, June 26, 1962, at 16.Show More

So was the birth of the two decisions that became the Supreme Court’s famous School Prayer Cases. In Engel v. Vitale, the opinion containing Justice Black’s immortal words, the Court held that a New York program requiring students to begin the day with a formulaic, government-composed prayer violated the Establishment Clause.⁵ 5.370 U.S. at 422, 436.Show More A year later, in School District of Abington Township v. Schempp, the Court doubled down on that holding by asserting that, whether government composes the prayer or not, requiring government-led prayer and devotional Bible reading in public schools violates the Establishment Clause.⁶ 6.374 U.S. 203, 205 (1963).Show More And most importantly, in both cases, the Court expressly rejected the argument that excusing objecting students removed the constitutional problem.⁷ 7.Engel, 370 U.S. at 430; Schempp, 374 U.S. at 224–25.Show More

Scholars have generally supported the School Prayer Cases, albeit with some notable dissents.⁸ 8.For examples of scholarship praising the School Prayer Cases or building on their rationales, see Stephanie H. Barclay, The Religion Clauses After Kennedy v. Bremerton School District, 108 Iowa L. Rev. 2097, 2107–09 (2023); William P. Marshall, The Constitutionality of School Prayer: Or Why Engel v. Vitale May Have Had It Right All Along, 46 Cap. U. L. Rev. 339, 341–42 (2018); Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People 119–22 (2014); Koppelman, supranote 1, at 67–71. For a provocative dissent, see generally Steven D. Smith, Constitutional Divide: The Transformative Significance of the School Prayer Decisions, 38 Pepp. L. Rev. 945 (2011) (arguing the School Prayer Cases deepened divides in America by constitutionalizing secularism).Show More But as a matter of so-called “popular constitutionalism,” the School Prayer Cases are some of the more controversial decisions in Supreme Court history.⁹ 9.See, e.g., Bruce J. Dierenfield, The Battle Over School Prayer: How Engel v. Vitale Changed America, at vii (2007) (claiming Engel was “greeted with more shock and criticism than Dred Scott v. Sandford”); Lain, supra note 3, at 507–14 (similar). For more on “popular constitutionalism,” see generally Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004).Show More Following Engel, governors in every state but one supported a resolution to overturn the decision.¹⁰ 10.Lain, supra note 3, at 512.Show More More than half of Americans disapproved of the outcomes when Engel and Schempp were decided,¹¹ 11.Id. at 482, 522 n.271 (discussing contemporaneous polling).Show More and polling indicates similar disagreement persists today.¹² 12.As of 2019, “roughly four-in-ten teens (including 68% of evangelical Protestant teens) who go to public school say they think it is ‘appropriate’ for a teacher to lead a class in prayer.” For a Lot of American Teens, Religion Is a Regular Part of the Public School Day, Pew Rsch. Ctr. (Oct. 3, 2019), https://www.pewresearch.org /religion/2019/10/03/for-a-lot-of-american-teens-religion-is-a-regular-part-of-the-public-school-day/ [https://perma.cc/VHJ8-XFRP].Show More Members of Congress have introduced no fewer than ten bills to strip the Supreme Court of jurisdiction over the topic of school prayer, not to mention hundreds of proposed constitutional amendments.¹³ 13.See Cong. Rsch. Serv., School Prayer: The Congressional Response, 1962–1998, at 1–2 (1998).Show More And just last year, New York City Mayor Eric Adams openly lamented the School Prayer Cases, insisting that “[w]hen we took prayers out of schools, guns came into schools.”¹⁴ 14.Dana Rubinstein, Adams, Discussing Faith, Dismisses Idea of Separating Church and State, N.Y. Times (Feb. 28, 2023), https://www.nytimes.com/2023/02/28/nyregion/eric-adam‌s-religion-church.html [https://perma.cc/6UTX-F5V2].Show More

In some measure, of course, disagreement about government-led school prayer is predictable. Since the mid-nineteenth century, public schools have played an important role in instilling moral values in children through government intervention—a project nearly always rife with controversy.¹⁵ 15.For one thoughtful perspective on this problem, see generally Noah Feldman, Non-sectarianism Reconsidered, 18 J.L. & Pol. 65 (2002).Show More But the School Prayer Cases are about more than that. They are also part of a larger set of questions about the propriety of government-sponsored religious observance. Can government officials lead citizens in prayer? If not, what about examples like prayers at presidential inaugurations or prayers by military chaplains? If so, what are the limits government cannot transgress? As it turns out, those questions are far from settled. In fact, they are very much up for debate.

The puzzle comes about this way. In recent opinions, the Supreme Court has emphasized that, from now on, the Establishment Clause must be interpreted primarily in light of “historical practices and understandings” as evidenced by “the Founding Fathers.”¹⁶ 16.Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2428 (2022) (quoting Town of Greece v. Galloway, 572 U.S. 565, 576–77 (2014)); Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2087 (2019) (quoting Town of Greece, 572 U.S. at 576) (same).Show More And in modern cases involving government-sponsored religious observance including the School Prayer Cases, the Court has relied on two theories to justify its decisions: one about government religious speech, and a second based on what the Court has called “indirect coercion.”¹⁷ 17.See infra Sections I.A, I.B (describing these theories).Show More Yet, at least arguably, neither theory sits comfortably with the Court’s more recent focus on Founding-era history.

The government-speech theory holds that the Establishment Clause forbids government from engaging in official religious speech—that is, speech that serves clearly devotional purposes.¹⁸ 18.See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223–24 (1963); Santa Fe Indep. Sch. Dist. v. Doe,530 U.S. 290, 305–08 (2000). The government-speech theory became closely related to the three-part test first articulated in Lemon v. Kurtzman,403 U.S. 602, 612–13 (1971).Show More Yet the Court never explained how this rule was consistent with long-accepted practices like legislative prayer, thanksgiving proclamations, or prayers by military chaplains or at presidential inaugurations.¹⁹ 19.See infra Section I.A (discussing these practices).Show More And subsequently, the Court has upheld these practices—most notably, legislative prayer—while rejecting the idea that the Constitution forbids government from speaking religious messages.²⁰ 20.Marsh v. Chambers, 463 U.S. 783, 787–92 (1983); Town of Greece, 572 U.S. at 575–85; see also id. at 616 (Kagan, J., dissenting) (disagreeing on the outcome in Town of Greece while agreeing with Marsh’s decision “upholding [a] tradition of beginning each session with a chaplain’s prayer”).Show More Judged against history and precedent, the government-speech rationale faces significant hurdles.

A similar problem persists with respect to the coercion rationale. In Lee v. Weisman, the Court held that a public school district violated the Establishment Clause by including government-sponsored prayer at a middle school graduation.²¹ 21.505 U.S. 577, 599 (1992).Show More Drawing on another strand of the original School Prayer Cases, Justice Kennedy insisted that the fundamental problem with government-led school prayer is the “indirect coercion” students face from “peer pressure.”²² 22.Id.at 592–93.Show More But Justice Kennedy’s expansive theory of coercion flowed from modern psychology, not Founding-era history.²³ 23.Id. at 593–94.Show More Moreover, Justice Kennedy did not explain why the indirect-coercion rule does not render many other common practices unconstitutional. To take just one example, if opt-outs cannot dispel the coercion inherent in government-led school prayer, why doesn’t the same conclusion follow as to requiring students to recite the Pledge of Allegiance, or requiring participation in some other school activity where a student objects on free-speech grounds?²⁴ 24.For the classic exposition of this problem, see generally Abner S. Greene, The Pledge of Allegiance Problem, 64 Fordham L. Rev. 451 (1995).Show More If peer pressure persists here too, are all these activities unconstitutional, opt-outs or no?

In a well-known dissent, Justice Scalia offered a different perspective. Pointing to various Founding-era practices associated with religious establishments—especially church-attendance laws and compulsory tithes—Justice Scalia agreed that the Establishment Clause forbids “coerc[ing] anyone to . . . participate in religion or its exercise.”²⁵ 25.Lee, 505 U.S. at 640–42 (Scalia, J., dissenting) (quoting id. at 587 (majority opinion)).Show More But according to Justice Scalia, history indicated that the Founding generation endorsed nothing like indirect coercion, much less a ban on government religious speech. Instead, they followed a much narrower principle: “The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.”²⁶ 26.Id.at 640.Show More

Justice Scalia’s position carries with it a radical implication. If the Establishment Clause condemns only government-induced religious activity involving “force of law and threat of penalty,” it is hard to see how the School Prayer Cases qualify. Yes, requiring students to attend school or participate in morning exercises that include prayer may involve commands issued “by force of law.”²⁷ 27.See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 47 (2004) (Thomas, J., concurring in the judgment) (observing that “[s]tudents are actually compelled . . . by law . . . to attend school” (citation omitted)).Show More But so long as these commands contain opt-outs for dissenters, they arguably do not involve any real “threat of penalty.” In Lee, Justice Scalia hinted at this possibility, indicating that allowing children to opt out of government-led school prayer might “suffice[] to dispel the coercion resulting from . . . mandatory attendance.”²⁸ 28.Lee, 505 U.S. at 643 (Scalia, J., dissenting).Show More Justice Thomas has since made a similar point, insisting that unless an objector can produce evidence of “actual legal coercion” as opposed to “peer pressure,” there is no basis to complain.²⁹ 29.Elk Grove, 542 U.S. at 47, 52–53 (Thomas, J., concurring in the judgment); see also Van Orden v. Perry, 545 U.S. 677, 693 (2005) (Thomas, J., concurring) (“The Framers understood an establishment ‘necessarily [to] involve actual legal coercion.’” (quoting Elk Grove, 542 U.S. at 52 (Thomas, J., concurring in the judgment))); Town of Greece v. Galloway, 572 U.S. 565, 610 (2014) (Thomas, J., concurring in part and in the judgment) (similar).Show More

With this backdrop, the heart of the controversy now comes fully into view. In Kennedy v. Bremerton School District, the Supreme Court recently held that a public school district violated the Constitution by punishing a high school football coach for praying on the field after several games, and it rejected the idea that the Establishment Clause condemned the coach’s actions.³⁰ 30.142 S. Ct. 2407, 2415–16 (2022).Show More In doing so, the Court explicitly abandoned Lemon v. Kurtzman and, by implication, most of the original government-speech rationale for the School Prayer Cases.³¹ 31.Id.at 2427.Show More The majority also rejected the argument that accommodating the coach’s religious exercise coerced students, mainly because the coach’s prayers took place after games concluded, when students were otherwise occupied and staff engaged in their own private activities.³² 32.Id.at 2428–32.Show More

In Kennedy, the Court carefully avoided taking a position on which version of coercion—Justice Kennedy’s or Justice Scalia’s—best comported with “the original meaning of the Establishment Clause.”³³ 33.Id.at 2429.Show More But the majority’s focus on record evidence—and especially its use of a district court quotation observing there was “no evidence that students were directly coerced”—struck the dissenters as capitulating to Justice Scalia’s position.³⁴ 34.Id. (emphasis added); see also id. at 2451 (Sotomayor, J., dissenting) (“The Court’s suggestion that coercion must be ‘direc[t]’ . . . is contrary to long-established precedent.” (alterations in original)).Show More In their view, the coach’s past practice of occasionally praying with students along with the presence of peers created clear “social pressure.”³⁵ 35.Id.at 2451–52 (Sotomayor, J., dissenting) (quoting Lee v. Weisman, 505 U.S. 577, 594 (1992)).Show More By ignoring that, the dissenters insisted, the majority portended a change in the law. Several scholars have suggested the same thing.³⁶ 36.See, e.g., Justin Driver, Three Hail Marys: Carson, Kennedy, and the Fractured Détente Over Religion and Education, 136 Harv. L. Rev. 208, 239 (2022)(suggesting that Kennedy “comes perilously close to installing the understanding of coercion that Justice Scalia’s dissenting opinion [in Lee] advanced”); Ira C. Lupu & Robert W. Tuttle, Response, Kennedy v. Bremerton School District—A Sledgehammer to the Bedrock of Nonestablishment, Geo. Wash. L. Rev. on the Docket (July 26, 2022), https://gwlr.org/kennedy-v-bremerton-school-d‌istrict-a-sledgehammer-to-the-bedrock-of-nonestablishment [https://perma.cc/F46M-BKLS] (suggesting that after Kennedy, “[p]rayer in schools may soon . . . requir[e] the provision of opt out rights to avoid compelled speech but no limitations on what schools may sponsor”). Others have gone even further. See, e.g., Alexander Tsesis, Government Speech and the Establishment Clause, 2022 U. Ill. L. Rev. 1761, 1801–02 (suggesting that in Kennedy “a majority of the Court adopted [Justice Scalia’s] flawed test”).Show More

The dissenters in Kennedy are probably right that the law of the School Prayer Cases may be in flux. But this Article argues that both sides of the debate are wrong in assuming that a historical approach to the Establishment Clause yields the end of the School Prayer Cases. Specifically, this Article argues that a more nuanced understanding of Founding-era history might well place those cases on firmer ground, and for reasons that Justice Scalia simply overlooked. And in so doing, this Article also suggests this same history may also help illuminate other questions surrounding government-sponsored prayer.

Begin with the most basic point. Individual justices and scholars have long noted that compulsory public education of the kind recognizable to us today did not exist at the Founding.³⁷ 37.See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 238–39 & n.7 (1963) (Brennan, J., concurring) (noting that in early America, “education was almost without exception under private sponsorship and supervision” until at least “the first quarter of the nineteenth century”); see also infra Section III.B.Show More But as the Kennedy majority hinted, members of the Founding generation were well-acquainted with a practice that resembles government-mandated school prayer in several relevant respects—namely, laws requiring attendance at worship services in state-approved churches.³⁸ 38.Kennedy, 142 S. Ct. at 2429 (noting that “government may not, consistent with a historically sensitive understanding of the Establishment Clause, ‘make a religious observance compulsory’ [or] . . . ‘coerce anyone to attend church’” (quoting Zorach v. Clauson, 343 U.S. 306, 314 (1952))).Show More Like mandatory school prayer, those laws required that citizens attend state-sanctioned religious instruction and worship. Yet contra Justice Scalia, it is inaccurate to say that Founding-era Americans viewed such laws as permissible so long as they contained opt-outs that might “dispel the coercion.”³⁹ 39.Lee, 505 U.S. at 643 (Scalia, J., dissenting).Show More From the late seventeenth century onward, mandatory church-attendance laws throughout the American colonies contained exemptions for religious dissenters. But supporters of religious liberty roundly rejected those schemes across different states. When it came to mandatory attendance at state-sponsored worship, opt-outs simply were not enough.⁴⁰ 40.See infra Section II.B.Show More

Yet if “direct coercion” was not the fundamental problem with laws mandating formal worship, what was? Here, members of the Founding generation offered a variety of answers. But in the main, their answers focused not on individual coercion, but instead on the limits of government power. On this theory, mandating attendance at state-sponsored worship was objectionable—opt-outs or no—because government simply had no authority to command a religious observance through law.⁴¹ 41.See id.Show More As one contemporary writer put it, citizens had “no right to invest their Legislature with [this] power,” because “[m]atters of religion lie between God and their own consciences, to whom each man is to give account for himself.”⁴² 42.Philanthropos, Number IV, Indep. Chron. & Universal Advertiser (Bos.), Apr. 6, 1780.Show More And as I explain in more detail below, understanding that point potentially offers several important insights for clarifying the law today.⁴³ 43.See infra Part IV.Show More

First and most basically, understanding prominent Founding-era objections to mandatory church-attendance laws provides at least some reason to think the Court’s famous School Prayer Cases were correct, though not for the reasons the Court has said. As initially formulated, the School Prayer Cases rested on what have become uncertain foundations—an increasingly outmoded theory of government religious speech on the one hand, and a nebulous theory of coercion on the other. But a reexamination of the Founding-era evidence offers a different way forward. From this perspective, the problem with teacher-led prayer in public schools is not that government expression must be strictly secular, nor that special rules about coercion apply to religion but nothing else. Instead, the problem is that the legal mechanisms supporting mandatory school prayer are analogous to mandatory church-attendance laws in the most relevant respects, and arguably violate the Establishment Clause for the same reasons.

Where government mandates both attendance at public school and attendance at official classroom activities—including daily prayer or devotional Bible reading—it has created a coercion-backed rule requiring attendance at state-sponsored worship. Moreover, as with Founding-era church-attendance laws, such programs necessarily assume a governmental power to command a religious observance, even if they might also provide opt-outs for dissenters. To be sure, the Founding generation never confronted this precise problem. And as explained more below, the complex history of public schools makes the issue more complicated still.⁴⁴ 44.See infra Section III.B.Show More Nonetheless, a proper understanding of Founding-era history provides a plausible argument that policies mandating public-school prayer are no different in kind from the laws mandating worship that the Founding generation rejected as a feature of religious establishment, and thus are similarly prohibited.

At a minimum, then, a more nuanced understanding of history might lend support to the Court’s famous School Prayer Cases. But even more, understanding Founding-era objections to laws requiring attendance at state-sponsored worship provides a new vantage point for thinking about the role of coercion in Establishment Clause doctrine, especially as it relates to government-sponsored prayer.

Members of the Founding generation objected to laws mandating attendance at government-sponsored worship, even where such laws exempted dissenters. In doing so, however, they did not limit their objections to instances of so-called direct coercion, as Justices Scalia and Thomas have emphasized.⁴⁵ 45.See Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2096 (2019) (Thomas, J., concurring in the judgment) (“In an action claiming an unconstitutional establishment of religion, the plaintiff must demonstrate that he was actually coerced by government conduct that shares the characteristics of an establishment as understood at the founding.”); Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J., dissenting) (“The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.”).Show More Instead, proponents of religious liberty at the Founding believed government lacked the power to issue commands requiring a religious observance. Rather than merely condemning discrete acts of punishment, Founding-era proponents of religious liberty condemned any governmental attempt to require formal acts of worship through law, no matter how permissively such laws functioned in practice. What mattered was the claimed power to enforce religious duties through a coercion-backed rule, not whether the rule also contained exemptions or ultimately punished discrete individuals.⁴⁶ 46.See infra Section II.C.Show More Thus, while not fully solving the debate about the role of coercion in Establishment Clause analysis, the Founding-era history described here offers a different way forward in how to understand it.

All this leads to a third point—this one more general. Many Founding-era objections to church-attendance laws rested, in significant part, on a belief that government lacked power to mandate worship, even under the most tolerant conditions. Yet by and large, members of the Founding generation did not seem to object to at least some other government actions involving religious observance, especially where such actions did not take the form of a coercion-backed command. Most notably, while many in the Founding generation believed that government lacked the power to “enjoin” days of prayer or thanksgiving, they generally thought that merely “recommending” such activity was acceptable, even while recognizing the dangers that distinction posed.⁴⁷ 47.See infra Section III.A.Show More And indeed, reflection on that point might illuminate a path for thinking through other thorny problems surrounding government-sponsored religious observance, especially in contexts where a formal rule or policy is lacking.

This Article proceeds as follows. Part I briefly explains the development of the Court’s jurisprudence surrounding mandatory public-school prayer and the puzzles surrounding those precedents, culminating in Kennedy v. Bremerton School District. Part II takes a step back to consider Founding-era history. This Part begins by canvassing laws mandating attendance at state-sponsored worship in England and the early American colonies. It goes on to explore why Founding-era Americans ultimately rejected those laws, even when they contained opt-outs for dissenters. Part III briefly discusses the scope of these Founding-era objections, first with respect to things like thanksgiving proclamations at the federal level, and second with respect to the historical development of public schools. Finally, Part IV returns to the modern cases and explores implications for government-sponsored school prayer and more.

Before proceeding to the discussion, two preliminary observations are in order. The first involves method. Following the Court’s invitation in Kennedy, this Article seeks to understand how and why Founding-era Americans rejected laws requiring church attendance, on the theory that those laws are relevant to thinking about the constitutional limits on things like government-sponsored public-school prayer today.⁴⁸ 48.See infra notes 105–19 and accompanying text (discussing Kennedy’s invitation to consider Founding-era history).Show More In doing so, however, the Article does not seek to provide an independent theory about why and how the Establishment Clause is incorporated against the states. Instead, I simply defer to the Court’s precedents in this area along with the Court’s corresponding assumption that—for both claims against the states as well as the federal government—Founding-era evidence is of primary importance.⁴⁹ 49.See, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421, 2428 (2022) (reaffirming the incorporation of the First Amendment and suggesting interpretation of the Establishment Clause must “faithfully reflect[] the understanding of the Founding Fathers” (quoting Town of Greece v. Galloway, 572 U.S. 565, 577 (2014))); Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2258–59 (2020) (looking to Founding-era history when interpreting the Establishment Clause’s application to a state-level controversy); see also id. at 2264 (Thomas, J., concurring) (“Even assuming that the [Establishment] Clause creates a[n] [individual] right and that such a right could be incorporated . . . it would only protect against an ‘establishment’ of religion as understood at the founding . . . .”). For a sampling of arguments defending the incorporation of the Establishment Clause, see Nathan S. Chapman & Michael W. McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience 75–84 (2023); see also Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz. St. L.J. 1085, 1088 (1995). For a contrary perspective, see generally Vincent Phillip Munõz, The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 U. Pa. J. Const. L. 585 (2006).Show More Likewise, this Article looks to evidence from the states as well as the federal government during the Founding period, because both kinds of evidence are highly relevant to understanding the historic concept of “establishment” and objections to it in this period.

The second point concerns the limits of my argument. In this Article, I attempt to chart Founding-era objections to government-mandated religious observance and the possible implications of those objections for several modern controversies. In doing so, however, the Article takes no hard-and-fast position on whether other limits under the Establishment Clause—including those not necessarily involving coercion—may also apply in specific circumstances. To take just one example, it seems likely that many at the Founding believed that government could not designate a national church or tie a religious group’s official status to adopting certain articles of faith.⁵⁰ 50.See, e.g., Donald L. Drakeman, Church, State, and Original Intent 229–32 (2010) (concluding that, at minimum, the Establishment Clause was understood to mean Congress could not establish a national church); Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2135–36 (2003) [hereinafter McConnell, Establishment] (discussing government control over articles of faith in South Carolina’s 1778 constitution).Show More In this Article, I contend that understanding historical objections to mandatory church-attendance laws provides the simplest path for addressing several puzzles surrounding the School Prayer Cases and related issues. But I do not foreclose the possibility that other Establishment Clause considerations may sometimes be relevant.

1.  See Roger K. Newman, Hugo Black: A Biography 522–23 (1994). The incident also appears in Andrew Koppelman, Defending American Religious Neutrality 67–68 (2013). ↑
2.  Engel v. Vitale, 370 U.S. 421, 431–32 (1962) (quoting James Madison, Memorial and Remonstrance Against Religious Assessments, in 2 The Writings of James Madison 183, 187 (Gaillard Hunt ed., 1901)). ↑
3.  See Corinna Barrett Lain, God, Civic Virtue, and the American Way: Reconstructing Engel, 67 Stan. L. Rev. 479, 507–14 (2015) (describing the outcry over Engel). ↑
4.  Anthony Lewis, Supreme Court Outlaws Official School Prayers in Regents Case Decision, N.Y. Times, June 26, 1962, at 16. ↑
5.  370 U.S. at 422, 436. ↑
6.  374 U.S. 203, 205 (1963). ↑
7.  Engel, 370 U.S. at 430; Schempp, 374 U.S. at 224–25. ↑
8.  For examples of scholarship praising the School Prayer Cases or building on their rationales, see Stephanie H. Barclay, The Religion Clauses After Kennedy v. Bremerton School District, 108 Iowa L. Rev. 2097, 2107–09 (2023); William P. Marshall, The Constitutionality of School Prayer: Or Why Engel v. Vitale May Have Had It Right All Along, 46 Cap. U. L. Rev. 339, 341–42 (2018); Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People 119–22 (2014); Koppelman, supra note 1, at 67–71. For a provocative dissent, see generally Steven D. Smith, Constitutional Divide: The Transformative Significance of the School Prayer Decisions, 38 Pepp. L. Rev. 945 (2011) (arguing the School Prayer Cases deepened divides in America by constitutionalizing secularism). ↑
9.  See, e.g., Bruce J. Dierenfield, The Battle Over School Prayer: How Engel v. Vitale Changed America, at vii (2007) (claiming Engel was “greeted with more shock and criticism than Dred Scott v. Sandford”); Lain, supra note 3, at 507–14 (similar). For more on “popular constitutionalism,” see generally Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004). ↑
10.  Lain, supra note 3, at 512. ↑
11.  Id. at 482, 522 n.271 (discussing contemporaneous polling). ↑
12.  As of 2019, “roughly four-in-ten teens (including 68% of evangelical Protestant teens) who go to public school say they think it is ‘appropriate’ for a teacher to lead a class in prayer.” For a Lot of American Teens, Religion Is a Regular Part of the Public School Day, Pew Rsch. Ctr. (Oct. 3, 2019), https://www.pewresearch.org /religion/2019/10/03/for-a-lot-of-american-teens-religion-is-a-regular-part-of-the-public-school-day/ [https://perma.cc/VHJ8-XFRP]. ↑
13.  See Cong. Rsch. Serv., School Prayer: The Congressional Response, 1962–1998, at 1–2 (1998). ↑
14.  Dana Rubinstein, Adams, Discussing Faith, Dismisses Idea of Separating Church and State, N.Y. Times (Feb. 28, 2023), https://www.nytimes.com/2023/02/28/nyregion/eric-adam‌s-religion-church.html [https://perma.cc/6UTX-F5V2]. ↑
15.  For one thoughtful perspective on this problem, see generally Noah Feldman, Non-sectarianism Reconsidered, 18 J.L. & Pol. 65 (2002). ↑
16.  Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2428 (2022) (quoting Town of Greece v. Galloway, 572 U.S. 565, 576–77 (2014)); Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2087 (2019) (quoting Town of Greece, 572 U.S. at 576) (same). ↑
17.  See infra Sections I.A, I.B (describing these theories). ↑
18.  See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223–24 (1963); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 305–08 (2000). The government-speech theory became closely related to the three-part test first articulated in Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). ↑
19.  See infra Section I.A (discussing these practices). ↑
20.  Marsh v. Chambers, 463 U.S. 783, 787–92 (1983); Town of Greece, 572 U.S. at 575–85; see also id. at 616 (Kagan, J., dissenting) (disagreeing on the outcome in Town of Greece while agreeing with Marsh’s decision “upholding [a] tradition of beginning each session with a chaplain’s prayer”). ↑
21.  505 U.S. 577, 599 (1992). ↑
22.  Id. at 592–93. ↑
23.  Id. at 593–94. ↑
24.  For the classic exposition of this problem, see generally Abner S. Greene, The Pledge of Allegiance Problem, 64 Fordham L. Rev. 451 (1995). ↑
25.  Lee, 505 U.S. at 640–42 (Scalia, J., dissenting) (quoting id. at 587 (majority opinion)). ↑
26.  Id. at 640. ↑
27.  See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 47 (2004) (Thomas, J., concurring in the judgment) (observing that “[s]tudents are actually compelled . . . by law . . . to attend school” (citation omitted)). ↑
28.  Lee, 505 U.S. at 643 (Scalia, J., dissenting). ↑
29.  Elk Grove, 542 U.S. at 47, 52–53 (Thomas, J., concurring in the judgment); see also Van Orden v. Perry, 545 U.S. 677, 693 (2005) (Thomas, J., concurring) (“The Framers understood an establishment ‘necessarily [to] involve actual legal coercion.’” (quoting Elk Grove, 542 U.S. at 52 (Thomas, J., concurring in the judgment))); Town of Greece v. Galloway, 572 U.S. 565, 610 (2014) (Thomas, J., concurring in part and in the judgment) (similar). ↑
30.  142 S. Ct. 2407, 2415–16 (2022). ↑
31.  Id. at 2427. ↑
32.  Id. at 2428–32. ↑
33.  Id. at 2429. ↑
34.  Id. (emphasis added); see also id. at 2451 (Sotomayor, J., dissenting) (“The Court’s suggestion that coercion must be ‘direc[t]’ . . . is contrary to long-established precedent.” (alterations in original)). ↑
35.  Id. at 2451–52 (Sotomayor, J., dissenting) (quoting Lee v. Weisman, 505 U.S. 577, 594 (1992)). ↑
36.  See, e.g., Justin Driver, Three Hail Marys: Carson, Kennedy, and the Fractured Détente Over Religion and Education, 136 Harv. L. Rev. 208, 239 (2022) (suggesting that Kennedy “comes perilously close to installing the understanding of coercion that Justice Scalia’s dissenting opinion [in Lee] advanced”); Ira C. Lupu & Robert W. Tuttle, Response, Kennedy v. Bremerton School District—A Sledgehammer to the Bedrock of Nonestablishment, Geo. Wash. L. Rev. on the Docket (July 26, 2022), https://gwlr.org/kennedy-v-bremerton-school-d‌istrict-a-sledgehammer-to-the-bedrock-of-nonestablishment [https://perma.cc/F46M-BKLS] (suggesting that after Kennedy, “[p]rayer in schools may soon . . . requir[e] the provision of opt out rights to avoid compelled speech but no limitations on what schools may sponsor”). Others have gone even further. See, e.g., Alexander Tsesis, Government Speech and the Establishment Clause, 2022 U. Ill. L. Rev. 1761, 1801–02 (suggesting that in Kennedy “a majority of the Court adopted [Justice Scalia’s] flawed test”). ↑
37.  See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 238–39 & n.7 (1963) (Brennan, J., concurring) (noting that in early America, “education was almost without exception under private sponsorship and supervision” until at least “the first quarter of the nineteenth century”); see also infra Section III.B. ↑
38.  Kennedy, 142 S. Ct. at 2429 (noting that “government may not, consistent with a historically sensitive understanding of the Establishment Clause, ‘make a religious observance compulsory’ [or] . . . ‘coerce anyone to attend church’” (quoting Zorach v. Clauson, 343 U.S. 306, 314 (1952))). ↑
39.  Lee, 505 U.S. at 643 (Scalia, J., dissenting). ↑
40.  See infra Section II.B. ↑
41.  See id. ↑
42.  Philanthropos, Number IV, Indep. Chron. & Universal Advertiser (Bos.), Apr. 6, 1780. ↑
43.  See infra Part IV. ↑
44.  See infra Section III.B. ↑
45.  See Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2096 (2019) (Thomas, J., concurring in the judgment) (“In an action claiming an unconstitutional establishment of religion, the plaintiff must demonstrate that he was actually coerced by government conduct that shares the characteristics of an establishment as understood at the founding.”); Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J., dissenting) (“The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.”). ↑
46.  See infra Section II.C. ↑
47.  See infra Section III.A. ↑
48.  See infra notes 105–19 and accompanying text (discussing Kennedy’s invitation to consider Founding-era history). ↑
49.  See, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421, 2428 (2022) (reaffirming the incorporation of the First Amendment and suggesting interpretation of the Establishment Clause must “faithfully reflect[] the understanding of the Founding Fathers” (quoting Town of Greece v. Galloway, 572 U.S. 565, 577 (2014))); Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2258–59 (2020) (looking to Founding-era history when interpreting the Establishment Clause’s application to a state-level controversy); see also id. at 2264 (Thomas, J., concurring) (“Even assuming that the [Establishment] Clause creates a[n] [individual] right and that such a right could be incorporated . . . it would only protect against an ‘establishment’ of religion as understood at the founding . . . .”). For a sampling of arguments defending the incorporation of the Establishment Clause, see Nathan S. Chapman & Michael W. McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience 75–84 (2023); see also Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz. St. L.J. 1085, 1088 (1995). For a contrary perspective, see generally Vincent Phillip Munõz, The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 U. Pa. J. Const. L. 585 (2006). ↑

50.  See, e.g., Donald L. Drakeman, Church, State, and Original Intent 229–32 (2010) (concluding that, at minimum, the Establishment Clause was understood to mean Congress could not establish a national church); Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2135–36 (2003) [hereinafter McConnell, Establishment] (discussing government control over articles of faith in South Carolina’s 1778 constitution). ↑