73 Pages Posted: 16 Oct 2008
Date Written: October 15, 2008
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": non-state 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.
Keywords: religion, free exercise, establishment clause, abraham kuyper, sphere sovereignty, first amendment institutions, first amendment institutionalism
Suggested Citation: Suggested Citation
Horwitz, Paul, Churches as First Amendment Institutions: Of Sovereignty and Spheres (October 15, 2008). Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Forthcoming. Available at SSRN: https://ssrn.com/abstract=1285328