Sarah Barringer Gordon (University of Pennsylvania Law School) has posted State v. Church: Limits on Church Power and Property from Disestablishment to the Civil War. The abstract follows.
Debates over the rights of religious organizations pit those who argue
for “church autonomy” from state interference against those who argue for
strict separation. In battles to exempt religious employers from providing
birth control to employees, to debates over parishioners right to secede from a central denomination and take their church property with them, defenders of religious institutions argue that individual interests or local congregations should not determine the outcome of disputes. They argue that the rights of religious institutions have long held a key place in American life. This article challenges that claim by investigating the legislative and judicial implementation of disestablishment in the states from the 1780s to 1860. Widespread legislative and constitutional limits on the capacity of religious organizations to acquire and hold property, coupled with the imposition of lay control of church affairs through the election of trustees, imposed strict limits on the scope of religious power to protect individual freedom of conscience. After disestablishment, state involvement in church affairs increased, in other words. In this environment of intense regulation and oversight, religious life flourished and lay involvement increased dramatically. Taking seriously the focus on individual freedom of belief as a key component of disestablishment, this article rebuts the argument that American history supports broad autonomy for religious institutions. Instead, it reveals a legacy of strict oversight combined with concern for individual liberty of belief.
Constitutions as Establishments
I’ve been thinking a little bit about the difference between establishments and disestablishments of religion. Constitutions serve several functions, but for this post, I’m interested in one in particular: to entrench the idea that there is a law above the state’s law — a law that cannot be changed by ordinary legislation. Could one say this about established religions in constitutional states? The argument would be that established religions in constitutional states place the constitutional state above its ordinary law, and they thereby control and restrain (the reach of) ordinary law. If the claim works, then as a functional matter, one might think of the Constitution as an establishment of religion. The Constitution — and, even more specifically, the First Amendment — is our establishment. It enshrines limits on the power of government, and in the case of the Free Exercise Clause, it can even subordinate the ordinary acts of government to higher law. And the First Amendment is an establishment inasmuch as it incorporates certain relationships between the state and religion right into the fabric of the governmental structure — relationships which it then fixes and removes from the purview of ordinary law. The difference between constitutional states with establishments of religions and those without them is that in the former, God or the gods establish the state, while in the latter, people do. But in both cases, constitutions ‘establish’ the (for lack of a better term) sacredness of the state and cement its position above ordinary law. And so, from this perspective, the opposite of establishment is not so much disestablishment as tyranny.
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Posted in Commentary, Marc O. DeGirolami
Tagged Constitution, Disestablishment, Establishment Clause