I’m very pleased to say that I’ve posted on SSRN a draft of a new paper, Churches as First Amendment Institutions: Of Spheres and Sovereignty. A slightly different version is forthcoming in the Harvard Civil Rights-Civil Liberties Law Review, which has been a pleasure to work with. Here’s the abstract:
This Article offers a novel way of approaching the role of churches and other religious institutions within the First Amendment framework. Beyond that, it offers a broader organizing structure for the legal treatment of “First Amendment institutions” – entities whose fundamental role in shaping and contributing to public discourse entitles them to substantial autonomy to organize and regulate themselves without state interference. Drawing on the work of the neo-Calvinist writer Abraham Kuyper, it encourages us to think about churches, and other First Amendment entities, as “sovereign spheres”: nonstate institutions whose authority is ultimately coequal to that of the state. In the sphere sovereignty model, a variety of spheres, including the church and other non-state institutions, enjoy substantial legal autonomy to carry out their sovereign purposes. The state is limited in its authority to intervene in these spheres. A sphere sovereignty conception of the legal order retains a vital role for the state, however; the state mediates between the spheres and ensures that they do not abuse their power with respect to the individual subjects of their authority.
The Article provides a detailed introduction to both the general field of First Amendment institutionalism, and the conception of sphere sovereignty offered by Kuyper. It argues that these two seemingly disparate projects, when combined, offer a richer understanding of our constitutional structure and the role of First Amendment institutions, such as churches, within it. It also argues that sphere sovereignty is closely related to many aspects of our existing constitutional history, and to constitutional thought about the relationship between the state and non-state associations more generally. It offers a number of applications of this approach to current church-state doctrine. It demonstrates that a sphere sovereignty-oriented approach to the treatment of churches as First Amendment institutions offers a legitimate, consistent, and conceptually and doctrinally valuable way of resolving some of the most pressing issues in the law of church and state.
Now, I know what you’re thinking: Another paper combining First Amendment institutionalism with Dutch neo-Calvinism? Hell, the law reviews are full of ’em! But, although I am biased, I hope and think that this is a fairly novel paper and a good contribution to both the First Amendment institutionalism literature and the literature on the role of religious entities in church-state litigation, encompassing such issues as the ministerial exemption, church property disputes, clergy sexual abuse litigation, and taxpayer standing under the Establishment Clause. I welcome readers and comments. Enjoy.
Posted by Paul Horwitz on October 16, 2008 at 11:05 AM
Comments
This paper is great, Paul. Sorry for the delay in sending my comments. Soon! FYI (maybe you already know) there’s a paper by Nick Wolterstorff coming out in the Georgetown Journal of Law and Public Policy about Kuyper and church-autonomy.
Posted by: Rick Garnett | Oct 16, 2008 7:52:03 PM