¹ The first was published in 2000. Nichols joined as a co-author on the third edition, published in 2011. Subsequent citations to the fifth edition are made parenthetically by page number.

² See, e.g., James Davison Hunter, The Culture Wars: The Struggle to Control the Family, Art, Education, Law and Politics in America (1992).

³ See Horwitz, Paul, The Hobby Lobby Moment , 128 Harvard Law Review 154 (2014)Google ScholarPubMed; Andrew Koppelman, Gay Rights vs. Religious Liberty? The Unnecessary Conflict (2020); Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Laycock et al. eds., 2008); Douglas Laycock, Religious Liberty and the Culture Wars, 2014 University of Illinois Law Review 839.

⁴ See Smith, Steven D., Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom ch . 6 (1995)Google Scholar.

⁵ See Ronald Dworkin, Law’s Empire ch. 10 (1986).

⁶ Some readers will recognize much of this material as also appearing in John Witte, Jr., The Essential Rights and Liberties of Religion in the American Constitutional Experiment, 71 Notre Dame Law Review 3 (1999).

⁷ Other scholars have divided the eras of American religious liberty differently. See, e.g., Steven K. Green, The Second Disestablishment: Church and State in Nineteenth-Century America (2010); Steven K. Green, The Third Disestablishment: Church, State, and American Culture, 1940–1975 (2019).

⁸ But see, for example, page 305, where the authors assert that the Court’s Establishment Clause jurisprudence has become “a bit more coherent and consistent over time, and remains built on a solid historical foundation.”

⁹ This is about twenty pages longer than the fourth edition (including endnotes). See John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment (4th ed. 2016).

¹⁰ See, e.g., id. ch. 13.

¹¹ See id. ch. 12.

¹² The fifth edition does include an appendix with the drafts of the religion clauses (361). Those seeking compilations of primary resources might consult Church and State in American History: Key Documents, Decisions, and Commentary from the Past Three Centuries (John F. Wilson & Donald L. Drakeman eds., 3d ed. 2003); Religious Liberty and the American Supreme Court: The Essential Cases and Documents (Vincent Phillip Muñoz ed., 2013).

¹³ See, e.g., Michael McConnell et al., Religion and the Constitution (5th ed. 2022); Frank S. Ravitch & Larry Catá Backer, Law and Religion: Cases and Materials (4th ed. 2021).

¹⁴ 343 U.S. 306 (1952).

¹⁵ See Zorach, 343 U.S. at 313 (“We sponsor an attitude on the part of the government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma.”).

¹⁶ See id. at 313–14 (“When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions.”).

¹⁷ See, e.g., Nathan S. Chapman, Forgotten Federal-Missionary Partnerships: New Light on the Establishment Clause, 96 Notre Dame Law Review 677 (2020); see also James S. Kabala, Church-State Relations in the Early American Republic, 1787–1846 (2013).

¹⁸ See generally Disestablishment and Religious Dissent: Church-State Relations in the New American States, 1776–1833 (Carl H. Esbeck & Jonathan J. Den Hartog eds., 2019).

¹⁹ See, e.g., Carl H. Esbeck, Disestablishment in Virginia, 1776–1802, in Disestablishment and Religious Dissent, supra note 18, at 139.

²⁰ See, e.g., Daniel L. Dreisbach, Religion and Politics in the Early Republic: Jasper Adams and the Church-State Debate 4–7 & 24–27 nn.14–33 (1996); Richard R. John, Taking Sabbatarianism Seriously: The Postal System, the Sabbath, and the Transformation of American Political Culture, 10 Journal of the Early Republic 517 (1990).

²¹ See, e.g., Sarah Barringer Gordon, The First Disestablishment: Limits on Church Power and Property before the Civil War, 162 University of Pennsylvania Law Review 307 (2014); Funk, Kellen, Church Corporations and the Conflict of Laws in Antebellum America, 32 Journal of Law and Religion 263 (2017)CrossRefGoogle Scholar; Lael Weinberger, The Limits of Church Autonomy, Notre Dame Law Review (forthcoming 2023).

²² See Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (2002).

²³ See, e.g., David Wallace Adams, Education for Extinction: American Indians and the Boarding School Experience, 1875–1928 (1995); Allison M. Dussias, Ghost Dance and Holy Ghost: The Echoes of Nineteenth-Century Christianization Policy in Twentieth-Century Native American Free Exercise Cases, 49 Stanford Law Review 773, 787–805 (1997).

²⁴ See, e.g., Kurt Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Arizona State Law Journal 1085, 1137–38 (1995). The authors acknowledge these failures, but in an offhanded way that does not begin to wrestle with what they might suggest about the principles of religious freedom (344–45).

²⁵ Steven D. Smith, The Rise and Decline of American Religious Freedom 108–10 (2014) (praising the period for permitting political contestation over competing “providentialist” and “separationist” visions of disestablishment).

²⁶ See Lash, supra note 24, at 1153–54

²⁷ See, e.g., Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 33 (1998); Smith, supra note 4, at 26–27.

²⁸ See, e.g., School District of Abington v. Schempp, 374 U.S. 203, 310 (1963) (Stewart, J., dissenting); Elk Grove Unified School District v. Newdow, 542 U.S. 1, 51 (2004) (Thomas, J., concurring).

²⁹ See John Witte, Jr., “A Most Mild and Equitable Establishment of Religion”: John Adams and the Massachusetts Experiment, 41 JournalChurch & State 213 (1999).

³⁰ For example, as the authors note at page 106: “Representative Harrington added a further worry that the involvement of the ‘federal courts’ in local laws on religion would ‘be extremely hurtful to the cause of religion.’”

³¹ U.S. Constitution, Amendment 1.

³² Senator John Blaine proposed an amendment that would have expressly applied the same text as the religion clauses to the states, but would have also forbidden them from placing public funds under the control of a religious group, or from dividing funds among religious groups. The proposal failed, but many states adopted similar funding restrictions in their own constitutions. See generally Steven K. Green, The Blaine Amendment Reconsidered, 36 American Journal of Legal History 38 (1992).

³³ See generally id.

³⁴ Marbury v. Madison, 5 U.S. 137, 177 (1803).

³⁵ See, e.g., James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law (1893).

³⁶ See, e.g., United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).

³⁷ See John Hart Ely, Jr., Democracy and Distrust: A Theory of Judicial Review ch. 3 (1980).

³⁸ See Philip Bobbitt, Constitutional Fate: Theory of the Constitution ch. 7 (1984).

³⁹ See Dworkin, supra note 5.

⁴⁰ See, e.g., Edward S. Corwin, The Supreme Court as National School Board, 14 Law & Contemporary Problems 3 (1949); Robert F. Drinan, The Novel “Liberty” Created by the McCollum Decision, 39 Georgetown Law Journal 216 (1951).

⁴¹ Kurland, Philip B., Of Church and State and the Supreme Court, 29 University of Chicago Law Review 1, 73 (1961).Google Scholar

⁴² David P. Setran, “Good Fences Make Strange Neighbors”: Released Time Programs and the McCollum v. Board of Education Decision of 1948, 39 American Educational History Journal 307 (2012).Google Scholar

⁴³ 343 U.S. 306 (1952).

⁴⁴ 494 U.S. 872 (1990).

⁴⁵ 521 U.S. 507, 536 (1997) (“When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed.”); see McConnell, Michael W., Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harvard Law Review 153 (1997)Google Scholar.

⁴⁶ Douglas Laycock, Religious Liberty and the Culture Wars, 2014 University of Illinois Law Review 839, 846.

⁴⁷ See, for example, page 93: “We instead present this material [on ‘Forging the First Amendment Religion Clauses’] as historians of the First Amendment, lifting up all the relevant data that are useful for the reader to judge what’s clear and what’s not so clear about the final sixteen words that comprise the First Amendment religion clauses.”

⁴⁸ 142 S. Ct. 1987 (2022). See also Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2021).

⁴⁹ 330 U.S. 1 (1947) (holding that a state may reimburse the fare for public bus transportation of students to private religious schools).

⁵⁰ See Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694 (2012).

⁵¹ Everson v. Board of Education, 330 U.S. 1 (1947).

⁵² See Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

⁵³ See, e.g., Everson, 330 U.S. at 12, 16.

⁵⁴ See Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020).

⁵⁵ See Witte & Nichols, supra note 9 at 282–84; see, e.g., Brian Leiter, Why Tolerate Religion? (2013); Schwartzman, Micah, What If Religion Is Not Special?, 79 University of Chicago Law Review 1351 (2012)Google Scholar; Richard Schragger & Micah Schwartzman, Against Religious Institutionalism, 99 Virginia Law Review 917 (2013). In the current edition, the authors present a litany of arguments against religious liberty, but these are underdeveloped and seem like hypotheticals because they are unmoored from citations to jurisprudential or scholarly arguments (349–50).

⁵⁶ See Welsh v. United States, 398 U.S. 333 (1970).

⁵⁷ Cutter v. Wilkinson, 544 U.S. 709, 724 (2005) (quoting Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 338 (1987)).

⁵⁸ The Court purported to be doing this in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), when it declared that the government could satisfy the interests of employees by providing their health insurance itself. See id. at 2781–82.

⁵⁹ See, e.g., Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020) (deciding, among other things, that “the State has not shown that public health would be imperiled if less restrictive measures were imposed” on houses of worship during the pandemic).

⁶⁰ Witte & Nichols, supra note 9, at 3 (quoting Francis Bacon, The Great Instauration, in The New Organon and Related Writings 3, 11 (Fulton H. Anderson ed., 1960) (1620)).

⁶¹ See, e.g., Ely, supra note 37, chs. 1–2.

⁶² See also Richard W. Garnett, Chief Justice Rehnquist’s Enduring Democratic Constitution, 29 Harvard Journal of Law & Public Policy 395 (2006) (denying, apparently with approval, that Rehnquist was “a fundamentalist, or even a thoroughgoing, principled originalist” (internal quotation marks omitted)).

⁶³ See, e.g., Colby, Thomas B. & Smith, Peter J., Living Originalism, 59 Duke Law Journal 239, 247–62 (2009)Google Scholar; Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 91 Georgetown Law Journal 1113, 1134–48 (2003).

⁶⁴ Kesavan & Paulsen, supra note 63, at 1144–45.

⁶⁵ See Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham Law Review 453, 504, 537 (2013).

⁶⁶ See id.

⁶⁷ See, e.g., Jack Balkin, Living Originalism 11–12 (2011).

⁶⁸ “[It is] further worth reminding ourselves of the founders’ original vision of the establishment clause, and its edifying wisdom over time” (305). “Even so, the first principles of the American experiment in religious liberty can continue to provide a reliable guide in such settings even if they do not dictate precise results in resolving the many cases that will continue to arise in this perennially contested terrain” (307).

⁶⁹ “Even so, the first principles of the American experiment in religious liberty can continue to provide a reliable guide in such settings even if they do not dictate precise results in resolving the many cases that will continue to arise in this perennially contested terrain” (307).

⁷⁰ Ronald Dworkin, Taking Rights Seriously 156 (1978).

⁷¹ See Adrian Vermeule, Common Good Constitutionalism 6 (2022).

⁷² See Nelson Tebbe, Religious Freedom in an Egalitarian Age 26–30 (2017) (discussing reflective equilibrium).

⁷³ 142 S. Ct. 2407, 2433 (2022).

⁷⁴ See New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022).