The Origins of Church Autonomy: Religious Liberty After Disestablishment

Abstract

The Supreme Court's most important cases on religious liberty in the last decade have featured religious institutions rather than individuals as the key actors. The Court has endorsed a "church autonomy" doctrine which protects religious institutions' ability to self-govern. In the name of church autonomy, the Court excepted religious institutions from what are apparently otherwise neutral and generally-applicable laws. Critics have argued that this is a novel move, out of step with the Court's precedents, and without deeper historical support-the critics claim that religious liberty in the early republic was not understood to protect church government from regulation by the civil government. Meanwhile, proponents of a robust church autonomy doctrine (including the Supreme Court) have traced the doctrine's antecedents to political theory and theology going back into the medieval period-but without devoting equal attention to the history of religious institutions in early America.

This article revisits the origins of church autonomy in American law. Rather than a late addition to the church-state conversation, church autonomy was one of the very first principles of church-state relations that American judges proclaimed in the aftermath of disestablishment. Most of the original American colonies had established churches. The United States Constitution prohibited any national establishment of religion, and the states with established churches gradually ended their legal establishments in the early republic. As judges in state courts wrestled with how to honor the principles of religious freedom and disestablishment in the following several decades, they gradually coalesced around a general principle to guide their decisions: matters of internal church governance should be respected by civil courts. In essence, the principle was church autonomy.

Moving from the descriptive to the normative, this paper argues that this history provides a solid foundation for church autonomy in American law. The historical grounding matters for a variety of normative constitutional approaches, as history is relevant to originalism and evolving-constitution theories alike. The history also provides insight into some of the current questions about church autonomy doctrine. The early history of church autonomy presents alternative approaches to contemporary doctrine on issues of the doctrine's scope, procedural character, and rationale.

Keywords: Church autonomy, Free Exercise Clause, Establishment Clause, Legal history, Religious liberty, Law and religion, Church and state