Gorsuch quotes and relies on a 2003 article on establishment at the founding, by Stanford Law professor Michael McConnell. But McConnell’s article lists as an instance of establishment the South Carolina Constitution of 1778, which allowed only churches that conformed to certain articles of faith to be “incorporated and esteemed as a church of the established religion of this State,” but also provided that “[n]o person shall, by law, be obliged to pay towards the maintenance and support of a religious worship that he does not freely join in, or has not voluntarily engaged to support.” In South Carolina, therefore, there was an established church with state-specified articles of faith, but no financial support.

Despite the noncoercive character of this establishment, McConnell still counted it as an exercise of “the power to control articles of faith.” South Carolina abandoned its establishment in 1790.