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.