34 Pages Posted: 13 Jul 2016 Last revised: 15 Jul 2017
Date Written: June 1, 2016
Scholars frequently describe American religious disestablishment using commercial analogies, reckoning that states “privatized” religion or subjected churches to “free market competition” by making them more like commercial businesses, yet churches pioneered many of the corporate devices that came to define American enterprise after the Civil War. Such descriptions are thus anachronistic. Antebellum jurists were not concerned about the similarity of churches to businesses but rather their similarity to states, and the republican fear that churches could be rival sovereign states at first structured the law of disestablishment. In most states, churches gained rights of general incorporation but faced significant limitations on their corporate governance and property holdings. After the Marshall Court reasoned that churches did not govern and should not be considered rival sovereignties, state judges were left without a definite source of law to adjudicate church disputes. Given the vagueness of charters under general incorporation schemes, state courts allowed trust law to function as a conflict of law analysis: Judges treated religious doctrine as a foreign legal system with rules that could be ascertained and accorded respect in American courts. Such a move created a positive, corporate right of religious liberty that becomes obscured if one conceives of religious freedom only as an individual right to be asserted against the state.
Keywords: disestablishment, church and state, corporations, republicanism, conflict of laws
JEL Classification: K11, K22, K40
Suggested Citation: Suggested Citation
Funk, Kellen R., Church Corporations and Conflict of Laws in Antebellum America (June 1, 2016). Journal of Law and Religion, Vol. 32, No. 2, 2017. Available at SSRN: https://ssrn.com/abstract=2804304