The first disestablishment: limits on church power and property before the Civil War.

• Author: Gordon, Sarah Barringer
• Position: Introduction into II. Enthusiasm and Regulation, p. 307-337

INTRODUCTION I. THE CHALLENGES OF DISESTABLISHMENT A. Seeing Like a Disestablished State: Regulation Through Incorporation B. Incorporated Societies 1. The Nature of "Religious Property" 2. The Law of Religious Property and Lay Governance II. ENTHUSIASM AND REGULATION A. A Regulated Market for Faith B. Going to Law C. The Trouble with Conscience III. THE CONTAGION OF LAY EMPOWERMENT A. Trusteeism B. Conscience over Clergy IV. THE GREAT DIVIDES A. Troubled by Conscience B. The Question of Localism C. Mere Money CONCLUSION INTRODUCTION

The rights and responsibilities of religious institutions are hotly debated in the early twenty-first century. Liberal separationists argue that religious organizations should be subject to secular laws regarding labor, health care (including access to birth control), child protection, and more. (1) Their opponents counter that the ideals of "church autonomy" or "the freedom of the church" exempt religious organizations from legal, administrative, or legislative oversight. (2) The standoff is exacerbated by the opposing interpretations of history on offer. (3) Former presidential candidate, talk show host (and historian) Newt Gingrich has called the Affordable Care Act's requirement that all secular employers--regardless of their owners' religious affiliations and convictions--provide birth control insurance coverage for employees "the most outrageous assault on religious freedom in American history" and asserted that "every time you turn around the secular government is shrinking the rights of religious institutions in America." (4)

From the other side of the spectrum, the invocation of history is equally strident. For example, Americans United for Separation of Church and State has battled against the claim that the government has undermined church autonomy. From this group's perspective, strict separation of church and state is "good for America" and "good for religion" because it prohibits government involvement with religious organizations. (5) American history, they argue, demonstrates that Presidents and right-thinking Americans alike have always supported their interpretation of disestablishment. (6)

This back-and-forth highlights the sharply differing views among activists, scholars, and politicians regarding the tradition of special deference (or lack thereof) given to religious organizations. The Hobby Lobby case, set for argument at the Supreme Court in early spring 2014, is just the latest incarnation of these battles. (7) The question is as old as the nation, however. The rights of individuals versus organizational rights have been essential to the development of the law of religion in America. The place of religious organizations was keenly debated as a key component of disestablishment. Yet we know almost nothing about the experience of such organizations in our nation's history.

Surprisingly enough, scholars have not studied how disestablishment actually worked in its first decades. What did it mean for a state to be disestablished, rather than just to announce that religious establishment was now prohibited? That question animates this Article, which builds on the prior work of scholars in the field of church and state, but also looks for answers in places others have ignored. The gradual commitment to disestablish by the states, for example, has been the subject of extensive and impressive scholarly research for at least the past century. (8) We have long known in detail the stories of Virginia and Massachusetts, the former as an exemplar of a particularly clear commitment to disestablish early in 1786, and the latter as the last holdout, disestablishing only in 1833. (9) The relationship of the federal religion clauses to the experience of the states has also been the object of considerable scholarly and judicial attention. (10) Scholars disagree over what the states' experiences in the lead-up to disestablishment tell us about current conflicts. (11) But few researchers have probed what religious liberty meant on the ground in the states that carried it out, (12) and none have assembled an overview of the widespread legal powers and limitations imposed on churches by states once they had officially severed church and state.

One explanation for the dearth of scholarship is that we have overlooked the implementation of disestablishment. The decision to disestablish represented an end in some ways but a beginning in many others. (13) It was the prelude to a gradual yet broad-ranging, nationwide attempt to limit the ability of religious organizations to acquire and hold wealth. Equally important, states imposed strict controls on church governance, (14) mandating the election of lay trustees to hold and manage church property. The desire to keep religious organizations both limited in size and firmly under lay control was key to the ongoing administration of disestablishment in the states. The rules were by no means identical, but they resembled each other enough to create a rough system. This first system of disestablishment imposed discipline on religious institutions, especially in terms of property and internal governance, based on concerns for individual conscience and lay control.

Ironically, then, disestablishment set the stage for extensive legislative and judicial oversight of churches and other religious organizations. Even a brief review reveals an astonishing array of government regulation in the period between the end of formal establishment and the Civil War. Disestablishment, it seems, was not widely understood as a mandate for government deference to religious institutions or the separation of those institutions from government, at least according to today's understanding of those terms. Quite the opposite--during the foundational period of American law, deep government involvement in religious institutions, rather than strict separation or respectful support, was characteristic and widely accepted.

This Article excavates this first system of disestablishment, recovering and analyzing what has long been hidden in plain sight in state statutes and related judicial decisions. The most startling aspect of this history is the direct control states exercised over religious organizations' property and power through statutes allowing "religious societies" (as they were commonly called) to incorporate. Consider, for example, the limitations on wealth imposed by most states, which capped real property acreage: two acres in Virginia, Maryland, and the congressionally governed District of Columbia; four acres in Kentucky; and five acres in Pennsylvania, Georgia, and Tennessee. (15) Limits were also imposed on total annual income: $1000 in New Hampshire; $2000 in Maryland; and $3000 in Maine, Wisconsin, and Minnesota. (16) Similar restrictions were enacted around the country, (17) revealing that the practice was neither regional nor tied to the religious convictions of legislators in particular jurisdictions. Instead, the pattern reveals something much more interesting: a system constructed by states to meet an unprecedented development--that is, the need to manage disestablishment.

Part I details the background of this process. It first investigates the precedents for state restrictions and the pressures disestablishment placed on legislatures. It then discusses statutory and constitutional limits imposed on church property and income after formal disestablishment in return for the privilege of incorporation, and explores the ways courts interpreted these restrictions. Part II focuses on how disestablishment in the states also empowered the laity, giving congregants new power to control church assets, and thus to dictate church policy. Bitter disputes over slavery, personal morality, and individual conscience enmeshed religious organizations in litigation, as these newly empowered congregants fought with each other over the demands of faith. Part III probes the ways in which fractious groups of lay members challenged the role of clergy in religious life and practice--especially, but not only, in Roman Catholic communities. Clerics and religious hierarchies came under fire, as trustees and their supporters argued that lay governance meant pastors now served at the pleasure of the congregation. The empowerment of the laity and incorporation of religious organizations also meant that once-internal disputes, such as arguments over the "souls of black folk," (18) now had legal as well as religious salience. Part IV examines how slavery fractured religious life along regional lines. Disestablishment, in this history, was critical--first to the flourishing of pluralism and then to the collapse of religious denominations, which were torn apart by the strident new powers of their congregants.

The restrictions imposed on church wealth and power before 1860 and the law of disestablishment as developed in state courts challenge the notion that institutional autonomy was a meaningful or common concern among early Americans or their governments. The lessons of this history are many, but none sustains the notion that either strict separationism or "the freedom of the church" accurately accounts for how disestablishment was understood and implemented from the Revolution to the Civil War. Present-day activists from both sides of the debate who seek to ground their claims in tradition must instead grapple with a much different, more surprising legacy.

1. THE CHALLENGES OF DISESTABLISHMENT

   By the early 1830s, all states--the original thirteen colonies and new states admitted after independence--were formally disestablished via constitutional provision. States admitted thereafter included such provisions in their initial constitutions. (19) The process was not identical in each state: some of the original states and many of the new ones had never had formal establishments. But the movement was powerful, and within a generation after the Revolution, the idea of an...