Dissent and Disestablishment: The Church-State Settlement in the Early American Republic

Brigham Young University Law Review, Feb 6/Feb 7, 2004 by Esbeck, Carl H

I. INTRODUCTION

Religious belief-its content and sincerity-is an individual affair. Each person is his own moral actor. But religion is rarely just an individual affair. It comes in many assorted groupings: clusters of people bound together by collective worship and ritual, sacred literature and creed, clerical leaders and governing polity, shared history and beloved buildings, overseas mission fields and neighborhood social projects. We call these various clusters of communal activities churches, synagogues, mosques, mission societies, hospitals, faith-based charities, parochial schools, and church-related colleges. These (and others) are all embraced, if inadequately, by the term "religious organizations."

The modern public law of religious freedom tries to take this organizational messiness into account and mostly succeeds. At least this is so in the West where not one, but two relationships have long been detailed juridically to account for it all. First, and primary, is the relationship between the nation-state and those individuals within its borders, the aforementioned moral actors, be they conformists or dissenters, believers or nonadherents. Second, and more complex, is the relationship between the nation-state and organized religion, or simply church-state relations. This latter relationship builds on the dual-authority pattern characteristic of Western society.1 The pattern recognizes coexisting sovereigns: civil government, which concerns itself with the secular; and church, which deals with the sacred. These two structures have spheres of interest that partly overlap, of course, and "sacred" does not mean that religious organizations are merely (or even mostly) focused on the hereafter, for they are highly visible institutions drawing considerable public attention and occupying real ground in the here and now.

In its opinions dating from the 1940s, the United States Supreme Court has resolved those questions having to do with the first relationship, that between the civil state and individual believers, under the Free Exercise Clause. And, likely sensing the dualauthority pattern of church and state familiar in the West, it has sorted out the exceedingly more fractious questions that implicate the second relationship, namely that between government and organized religion, under the Establishment Clause. The Court has not in so many words said that this is what it is doing, but that is what it has been doing.2 Whether this tidy consignment of legal questions to either one or the other of the two Religion Clauses (or some other meaning) reflects what was originally intended by the authors of the First Amendment still generates a hefty monograph at a rate of about one every other year. This paper does not take up the originalist question. Rather, the aim here is to examine the bedrock upon which the work of the modern Court is built. From this perspective, the dual-relationship construct nicely resolves a series of otherwise nasty conundrums in the modern Court's religious freedom jurisprudence.3 Developed elsewhere is a list of those doctrinal puzzles,4 each of which is solvable if the Free Exercise Clause is regarded as a right vesting in each individual the ability to resist many government-imposed burdens on his religion, and the Establishment Clause is regarded as a power-limiting clause, a "negative" on the legislative, executive, and judicial authority of the state.5

Avoiding treatment of the Establishment Clause as an individual right to be free from religion is key. Failure to avoid treating the Clause as such a right leads to confusion.6 That is, to regard free exercise as a right held by A to practice his faith, and noestablishment as a second and different right vested in B to be free of unwanted exposure to A's religious exercise, makes no sense. It inevitably places these two clauses, lying side by side in the text of the First Amendment, on a collision course.7 Attempts under such a treatment to reconcile the two rights, or to subordinate one to the other, are tortuous and unpersuasive. This supposed "collision" between the clauses falls away, however, when the Establishment Clause is regarded as an aspect of the Constitution's overall structure of limited government,8 one policing the boundary between civil authorities and organized religion.9 As so conceived, the clauses can still, on occasion, overlap in their cognizance, but when that occurs, the clauses merely reinforce each other; hence, there is no "collision" between the two.10 This construct of the no-establishment principle also helps to reduce the fractious nature of church-state litigation, certainly a desirable goal.11

This clever paradigm shift would have little staying power, however, if it did not fall in step with how the polis, past and present, worked out and continues to think about relations between church and state. The construct certainly resonates with the popular understanding of the Establishment Clause as regulating interactions between church and state. There is a government (national, state, or local) with its attending political philosophy, and there is a church (synagogue, mission society, denominational college, parochial school, or faith-based charity) with its attending ecclesiology. Each body in this relationship is understood to have a proper role and to occupy a certain sphere of responsibility. Each body, while important, comprises only a part of the overall society, not the whole of society or even most of the public aspects of modern society. Each body, state and church, has a legitimate claim, albeit of a different nature, on the allegiance of individuals, called "subjects" or "citizens" by the nation-state and "adherents" or "laity" by the church. It necessarily follows that citizens who are also adherents will have two loyalties: God and country. In the West, although the two powers have chafed one another, both have readily acknowledged for centuries that they each occupy a distinct jurisdiction within the whole of society.