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The first disestablishment: limits on church power and property before the Civil War.

A. A Regulated Market for Faith

As disestablishment took root, denominations competed for members. Mobility in the population and among preachers made for great excitement, especially when a revivalist came to town or camp meetings drew worshippers from afar. As the capacity to choose among denominations or ministers settled in to common experience, the focus on individual moral capacity grew commensurately. Debate grew hot over the moral responsibility of individuals and their ability to experience God's grace directly. Fervent abolitionism was one aspect of such debates, but others also erupted after believers had been freed from the restraints imposed by established religion. (153) In cultural and spiritual terms, the one-size-fits-all approach to disestablishment produced a (very) rough equality of opportunity among religious actors. With no official machinery dedicated to advancing or hindering individual faith and practice, the growth in new voices, new methods, new doctrines, and, especially, popular appeals to individual conscience, all meant stunning change.

Parishioners felt new power to vote not only with their feet, but also with lawsuits. When they left, fired a minister, or split into factions, the resulting legal battles echoed the waves of conversions that characterized the Awakening. What the contestants may not have recognized at the time, but is evident in retrospect, is that disestablishment created space for growth, but also set limits on how much wealth and power a religious organization could acquire. General incorporation statutes imposed boundaries on real and personal property, while lay control of church corporations undercut the power of the clergy. Together, these new rules sculpted both the fabulous growth in popular religious life and the way that disputes were conceived and resolved. In what follows, I focus on just the most prominent examples of the relationship between religious enthusiasm and disestablishment. (154)

Religious developments also focused on lay empowerment. Baptist and Methodist preachers, many of them appealing to common people in simple language, reaped a rich harvest in the South and West in the early nineteenth century. Across the North, evangelicals, Unitarians, transcendentalists, and liberal Protestants elevated individual religious experience. Upstate New York was so afire with successive waves of popular religious enthusiasm that it became known as the "burned-over" district. (155)

Evangelical preacher and recovering lawyer Charles Grandison Finney, for one, claimed that individual Christians were capable of achieving their own salvation without the aid of clerics. In theological terms, they were charged with the individual duty to experience holiness, rather than a collective mandate to obey doctrine. (156) Personally, when faced with a difficult question, Finney "spread the subject before God, and soon made up [his] mind what to do." (157) He threw out the collected wisdom of the fathers, in other words, in favor of his own inspiration. Like the Presbyterian Finney, most Baptists and many Methodists also trusted individual conscience over the collected wisdom of elders, be they religious or political. (158) As one scholar put it, "humans [now] had a direct channel to God, unmediated by civil or ecclesiastical authorities." (159)

To this generation, intellect seemed a poor substitute for intuition; genuine and unscripted experience occurred outside the purview of scholars. Access to the spirit was the key, rather than immersion in theological debates or learned discourse. Enthusiastic preaching, dreams, visions, and long-suppressed folk beliefs and practices all sustained the conversions of everyday folk, no matter how rough their education: "[L]arnin' [sic] isn't religion, and eddication [sic] don't give a man the power of the Spirit," declared one anonymous evangelist. (160) The phenomenally successful Methodist itinerant Lorenzo Dow exemplified the popular spirit; he preached anywhere and everywhere--shaking, crying, pleading--in ragged clothing and with wild gesticulations and frequent convulsions. (161)

Thanks to general incorporation statutes in many states, religious communities did not need sophistication or political influence to acquire legal protection. All they needed was a simple form, and generally a small sum to defray filing costs, in order to achieve legal recognition as an incorporated society. The power of the corporate form allowed untutored leaders such as Lorenzo Dow (or Joseph Smith, for that matter) to organize existing believers and new converts, and to win the same level of legal recognition that went to more established religious bodies. The simplicity of the system appealed to ordinary folk because of the ease with which the statutory provisions could be satisfied'. The efflorescence of such organizations testifies both to the effectiveness of the new preaching and the appeal of the roughly level playing field achieved by incorporation. (162)

The power to choose, therefore, was expressed in both religious doctrines and corporate organization. Each affected the other, bringing the new corporations into immediate engagement with the aspirations of congregants. Religious doctrine and congregants' own convictions were united in the new organizations; or, if a group disagreed about what its goals and commitments truly were, then the power to leave and create a new corporation came quickly into play, bringing with it a destructive potential. Churches, like the new country, found themselves pulled apart by the great religious and political questions of the age. (163)

The power of the common people to decide their own religious allegiances implied that slavery--to name the most hotly and frequently debated question--was a violation of God's law of freedom of conscience. "[P]rofessed piety toward God is ... base and spurious," proclaimed one abolitionist minister in 1832, "[if] not united with benevolence for men." (164) At the same time, the presence of enslaved persons in the pews highlighted and challenged the antiauthoritarian assumptions of lay empowerment.

The contrast between what disestablishment accomplished and what it left untouched was stark: legal constraints on the body to coerce belief were eliminated, yet coercion of the body in slavery survived and eventually deepened and spread. The disparity was a matter of deep religious import. (165) As one dedicated abolitionist put it in language drawn directly from political life, a true church in America had to embrace freedom for all: "[A] church ought to be an anti slavery Society (for certainly [the bible] is both an Anti Slavery Constitution and Declaration of Sentiments)...." (166)

With escalating virulence, slaveholders fought back against such emancipatory religious theories and their proponents; by the second quarter of the nineteenth century, slave revolts had been kindled in the pews of new evangelical movements, which were then brutally suppressed in reprisal. (167) Across the South, especially in Virginia, lay control had been common even before disestablishment. After the Revolution, the slaveholding laity recreated religious authority by encouraging "voluntary" submission to divine governance. Virginia slaveholders, that is, deployed their reconstituted power within a disestablished church to ensure that older patterns of dominance were reinscribed and updated. In this way, slaveholders and their supporters ostensibly catered to the egalitarian aura of disestablishment, while also providing a familiar protective privilege for slaveholding. (168)

Yet the direct connection between God and the individual had other more genuinely equalizing, even antiauthoritarian, effects. The religious experience of farmers or laborers--as opposed to the abstractions of elite clerics--gained credence in disestablishment. The common people, explained one radical evangelist, had followed Jesus even as "the monarchical, aristocratical and priestly authorities cried 'crucify him!'" (169) When individual spirituality acquired pride of place, traditional clerical authority, much like traditional modes of funding for religious institutions, became vulnerable to a more popular model. The emerging relationship between disestablishment and individual religious experience generated support for lay stewardship of religious organizations, especially because ordinary people could be trusted to recognize the divine in their lives.

This focus on individual capacity to discern God's will also played out in attacks on civil commands. The potential for anarchy was evident even among highly educated young men such as Ralph Waldo Emerson. As Emerson's compatriot Bronson Alcott said,

   Church and State are responsible to me; not I to them. They cease
   to deserve our veneration from the moment they violate our
   consciences.... Why would I employ a church to write my creed or a
   state to govern me? Why not write my own creed? Why not govern
   myself? (170)

Contests between anarchy and government in religion (as well as politics) found expression in both legal disputes and judicial resolution of such conflicts. Often, courts privileged individual conscience by upholding the actions of lay trustees, even against long-established religious traditions.

B. Going to Law

Creating a legal framework for religious institutions meant that law in turn became fundamental to the understanding of what it meant to be a religious institution. This shift occurred in litigation as well as through legislation. Litigation over new methods and unorthodox beliefs wracked churches across the new nation. Lay control of church property meant that disagreements over individual conscience often migrated into courtrooms, where judges faced bitter fights between congregations and their ministers, fights between two (or more) factions in a congregation, or even challenges from one or more congregations to a bishop or general conference. In courtrooms, the regulations imposed by state legislatures were interpreted and applied, deepening the relationship between the system of disestablishment and the course of religious life. Religious societies had been explicitly recognized and limited by positive state laws: determining the contours of these laws drew litigants to the state venue for finding such meaning--that is, to the courts.

Ironically, then, popular religious enthusiasm and official disestablishment drew courts and legislatures more rather than less deeply into religious life. Often, members or former members asked courts to endorse doctrinal changes and increased power for individuals against opposition, or they opposed such change against new heresies. The amount of litigation is staggering. At every turn, quarrels devolved into arguments over church polity, the rights of congregants, the disposition of church property, and the standing of ministers. (171) State reports of cases are littered with such disputes, (172) but none were as all-consuming as battles over slavery.

There were rough differences in legal strategy and outcome by region and denomination, as well as many similarities. Abolitionists from New England, New York, and Pennsylvania challenged religious orthodoxy in part because they were so convinced that slavery violated essential Christian mandates. By the 1830s, they were disillusioned by religious organizations' silence on the question. Many advocated nonsectarian "come-outerism," and by the tens of thousands left traditional denominations in the interest of "Christian fellowship" over "[corrupt] church connection[s]." (173) Even those who remained behind felt the pull of conscience so deeply that cracks began to appear in many Protestant denominations over the issue of slavery, widening within a decade into wrenching schisms. (174)

Such movements deepened the fission within religious groups, which were already riven by the empowerment of the laity. By the late 1790s, Richard Allen in Philadelphia and other African American religious leaders from Baltimore, New York, and New Jersey reacted to increasing racism by withdrawing from interracial churches and starting down the path that led in 1816 to founding their own denomination, the African Methodist Episcopal Church (AME). A long and bitter legal controversy over church property finally vindicated the claims of the AME Church and its members to the property of Bethel Church and the right to choose their own preachers. (175)

The Methodist Episcopal Church was itself a new denomination in the late eighteenth century, founded only in 1784 as the former Church of England devolved into a more conservative and restrained Episcopal Church. (176) The Methodists were a tiny new group, followers of John Wesley's "methodistical" (and far more raucous and expressive) approach to worship. (177) Lay exhorters and itinerant preachers--few of whom were formally educated in the faith--led meetings and love feasts that yielded a rich harvest of converts, especially along the fringes of society. Methodism's adherents numbered a negligible 1000 in 1776, but swelled to 250,000 by 1820 and 500,000 by 1830. (178) Hidden in these phenomenal increases, however, lay conflict--especially over race and slavery. Because such conflict took place within and between corporations, resolution generally turned on the powers of trustees, the scope of religious authority, and, of course, the control of church property.

C. The Trouble with Conscience

Schism, the bane of organization, became a constant in American religious life within a generation of disestablishment. With incorporation statutes, states had created a template for organization, but they did not provide for continuity. To do so would have meant privileging authority in a more traditional sense, denying the power of congregants to change and to reflect that change in institutional structures. And change they did: especially on issues of race and slavery, religious societies became sites of fierce and divisive conflict. The danger of lay empowerment was revealed in the brittleness of religious societies. Fracture became a byproduct of the legal structures imposed on religious corporations, combined with the great tension that flowed from vibrant religious practice among diverse and divergent American communities, on the one hand, and slavery, on the other.

The power of religious conviction led American believers in diametrically opposed directions over slavery and the religious status of enslaved persons, drawing state and local governments, and eventually the national government, into the fractures that followed. Like the divisions already discussed in cases arising in Philadelphia, race and individualism played a commensurately vital role in southern masters' eventual embrace of evangelical Christianity. The story has everything to do with slavery, reflecting the uneasy and changeable nature of religious organizations and their intimate connection to coercion in the antebellum South.

As with disestablishment, the churching of southern white men played out over time. At the turn of the nineteenth century, slaveholders across the South were fiercely independent in their religious opinions. As one scholar put it, "[A]ll Baptists and Methodists whose ministries straddled the turn of the century came to realize[ that] the South's masters knew how to resist being thus mastered" by preachers. (179) Itinerant ministers--especially if their services incorporated the testimonies of enslaved persons and white women--were often treated violently. Methodist camp meetings proved particularly tempting targets for bands of rowdy skeptics, (180) because their preachers seemed to lack manly control over their congregants.

By the 1820s, however, white Methodist and Baptist ministers in the South had reworked their antislavery image and their interracial preaching and worship services. (181) They began to downplay the role of African Americans in church services by restricting the texts on which they could preach and the places where they could speak. (182) White Methodist memoirists even downplayed the power and significance of black preachers by dismissing them as "good old uncles." (183)

Despite the efforts of white Southerners, however, the South saw a spectacular rise of black preachers and spiritual exhorters, especially among Baptists and Methodists. These new preachers reflected the promise of freedom of conscience. At the same time, they tested the commitment of popular denominations to a unified vision of human moral potential. In Charleston, South Carolina, for example, a separate African Church was created when white Methodists tried to abolish a blacks-only quarterly conference and announced a plan to construct a new building on the black Methodist graveyard, (184) Other African American Methodist and Baptist organizations emerged in Maryland, Virginia, Kentucky, Tennessee, and Georgia. (185) There were likely others whose legacy has not survived. The Charleston African Church was destroyed in 1822 when white residents discovered that its members included the antislavery rebel Denmark Vesey, a former slave who preached that the Bible said slavery was wrong, and many of his followers. (186) Thereafter, such religious independence was strictly prohibited (and punished). (187) In several jurisdictions, organized worship among slaves without white supervision was made illegal under state law. (188) Nevertheless, the spread of Christian exhortation among enslaved persons carried the same message of liberty of belief and moral capacity that so galvanized the revolution against religious authority among ordinary folk everywhere in antebellum America.

After the Vesey rebellion, religious services among white Southerners no longer challenged the racial code of slavery, and white ministers consistently catered to the world of masters. Preachers developed a theory of spiritual warfare that cast them as martial leaders, and white church members as "the army of Jesus." (189) Spiritual and military weapons thus blended together in preachers' appeals to white men. Later, young male congregants were enlisted to "guard" camp meetings, enforcing strict decorum. In this newly militarized religious culture, white men were told they had become warriors for Jesus, "yielding victories that equaled if not exceeded the triumphs of their fathers" on battlefields that featured sinners rather than the soldiers of the British king and his allies. (190)

Baptist and Methodist ministers thus adopted and adapted the culture

of racial mastery that sustained slavery in the antebellum South. By embracing the sensibilities of masters, southern white evangelical preachers catered to the southern masters' individual authority and spiritual capacity. As in the North, religious authority shifted from the pulpit to the pew, but in the South the shift deferred to slaveholders--reinforcing rather than challenging their authority to coerce. The embrace of slavery brought many converts to white Protestant churches by 1830. The shift to lay empowerment in a slave culture laid the groundwork for later confrontations over the spiritual status of slavery by region. But in the meantime, confrontations over the powers of laypersons traveled far and wide.


One might assume that the wrestling over local lay control was a Protestants-only tourney. Scholars sometimes refer to the "de facto" establishment of Protestantism after formal disestablishment. (191) Yet the system of disestablishment imposed by states affected all religious communities, often disrupting patterns of governance and expressions of faith. Such reconstruction of traditional patterns was often welcomed by congregants but resisted by clergy and religious hierarchies.

Catholics were a crucial part of this story, especially in the antebellum period. Their history also featured a revolt against authority, fought bitterly around the country. Thanks to the tools provided to them by state legislation, individual Catholics were armed with new means of conceiving their place in the faith. The attack on Catholic clerical authority thus came from within, buoyed by the contagion of lay empowerment that was so central to the first system of disestablishment. Prominent members of the Catholic laity, as well as a group of Americanized priests--even a bishop or two--and their supporters among the Protestants all challenged the Catholic hierarchy, using the powers entrusted to lay trustees. (192)

Like Protestants of the same period, American Catholics built on traditions of lay control that originated even before disestablishment. The trustee system imposed by state incorporation statutes, also called "trusteeism" by its detractors (in particular, by more hierarchically minded Catholic bishops and the Vatican), was embraced especially by the French, Spanish, and German Catholics in America. Many of these immigrants recalled substantial localism in their churches in Europe or had ancestors who told them about the powers of local laities in their home countries. (193) In the United States, however, Catholic bishops set themselves against such inroads, asserting their episcopal authority with new vigor. The resulting controversies lasted from the turn of the nineteenth century through the 1850s and beyond. The conflict affected large portions of the laity, and dogged bishops who struggled to stem the tide of schism. The bitterness of these internal battles was expressed in newspaper and pamphlet wars, fisticuffs, riots, the burning of one bishop in effigy, and, frequently, in litigation. (194)

Backed by state laws, lay trustees asserted widespread control over Catholic congregational life and church property by the second decade of the nineteenth century. The contagion spread rapidly. As one shocked Catholic scholar wrote in the early twentieth century, lay trustees a century earlier had acquired "gradually the fatal tendency of regarding their priests as 'servants to perform religious services,'" and even "dismiss[ed] any priest who attacked the system [of lay control] and ... select[ed] clergymen who were amenable to dictation from themselves." (195) Such attacks on episcopal power were not unique to Catholicism. Methodists underwent a reformation in 1824, when laypersons sought equal access to central governing structures. The resulting schism moved the main church to explain that its bishops did not rule the church, but were benign and noninterfering "superintendents." (196) Among Episcopalians, the role of the bishop was explained as exactly like that of parish-level priests, only with the added power of ordination and representation of local interests in synods. (197)

While the Catholic Church was not the only denomination to experience rebellion from within the ranks, it felt the challenge most deeply. The assertion of American Catholic lay control in the early nineteenth century threatened ancient and powerful lines of religious authority in Rome that had barely noticed the American Revolution, but that nevertheless soon felt its effects.

A. Trusteeism

The challenge to the hierarchy of the Catholic Church by its American laity extended from New York to New Orleans--a "dreary struggle," as one Catholic priest later lamented, which "showed the legal helplessness" of a bishop when confronted by a determined body of trustees backed by law. (198) In the hands of lay Catholics, "trusteeism" disturbed the rule of an increasingly embattled coterie of American bishops. (199)

Warring factions erupted into open conflict in New York City in 1817 when the trustees of St. Peter's and St. Patrick's, the two Catholic churches in the city at the time, divided over whether to fund the debt incurred in building St. Patrick's. (200) After Bishop John Connolly installed his supporter, the Dominican Father Charles Ffrench, as a priest at St. Peter's, his opponents campaigned openly to defy the bishop. They claimed Ffrench was guilty of "serious charges of unclerical conduct," (201) including alleged carnal relations with a woman, licentiousness, and profligacy during an earlier assignment in Canada. (202) He had reportedly been suspended by his superiors for these very sins. (203) And in New York in 1819, said his detractors, Ffrench assembled a mob of fellow Irishmen and invaded the trustees' meeting, roughing up and forcibly ejecting the Spanish Consul, a leader of the trustees. (204) Ffrench sued one of the New York trustees for defamation. The trustee defended himself by airing in open court the scandal of Ffrench's Canadian escapades and his American thuggery, to the delight of the local press. (205) Ffrench's suit eventually was dismissed on the ground that the role of a church trustee included the responsibility to investigate the pastor's conduct and character. (206) The court thus upheld the right of trustees to pry into their priests' private lives and pasts. "[H]onest Catholics," reported one ally of the trustees, now "refuse[] to hear [Ffrench's] Mass and receive Sacraments from his ugly hands." (207)

In other cities, explosive conflicts between the princes of the church and elected trustees with republican ideas convinced Rome that matters in America had descended into unseemly "discord and dissensions." (208) A Papal Bull was issued in 1822 to quell the lay rebellion in America, (209) but it failed dismally--especially in Philadelphia. In that city, the trustees of the "miserably distracted" (210) St. Mary's Church on Fourth Street attempted to oust the bishop's man, one Father Cummiskey, and install the Reverend Willam Hogan in his stead. (211) In response, the bishop of Philadelphia excommunicated Hogan, a move that was upheld on appeal to Rome. (212)

The entire battle was brought to court, where secular judges were empowered under Pennsylvania law to decide vital questions of church polity. (213) Equally sensational, Hogan--and, by implication, Catholic clergy more generally--was accused of making sexual advances and then beating and stabbing a congregant when she was hired to help him with housework and errands. He was eventually acquitted of the charges, but not before a long trial and extensive (often contradictory) testimony revealed the fissure within the Catholic community. (214)

In these ways, trusteeism created a challenge to Rome that was distinctly

American, but also fed into other early nineteenth-century conflicts that troubled the Vatican. The prospect of trustee control over American churches compelled Rome to label trusteeism a heresy, a category reserved for the most dangerous violations and a justification, for example, for the Inquisitio Haereticae Pravitatis--the Inquisition. Trusteeism remains the only heresy ever to emerge from the United States; the ripples of the controversy it caused within Catholicism are still felt by American Catholics today. (215)

In Pennsylvania, the Church won a Pyrrhic victory. Amendments to the St. Mary's articles of incorporation drafted by the trustees to cement their power over the church and its ministers were eventually rejected by the Pennsylvania Supreme Court. (216) The defeat was a close call. In the end, the court held that trustees held power over all temporal assets of local Catholic churches, but that appointment of priests by bishops was a signal feature of ecclesiastical structure. (217) The writ of disestablishment did not invade this final refuge of church polity.

The raw fact of the power of clerical appointment, the court stressed, was of necessity exercised in sharply reduced circumstances. Chief Justice William Tilghman noted that trustees in other denominations had attempted similar coups. (218) The Presbyterians in particular were mired in controversy over the right of lay vestries to dismiss controversial clerics. (219) As in those cases, the court held in the St. Mary's case that preexisting church governance stipulated that only bishops had the power to remove local priests. (220) But Tilghman's opinion also stressed that the church itself had no power beyond this. In light of the limits on internal control imposed by the state through the lay trustee system, Tilghman noted that the church's power to name a priest meant precious little without the power of the purse, which had been transferred to lay trustees. The bishop might have the power to appoint a priest, but he would not be paid without trustee approval, making the power of appointment more symbolic than actual. In light of this partial authority, the court advised the bishop to tread carefully:

   It is scarcely possible that the Roman Catholics of the United
   States of America, should not imbibe some of that spirit of
   religious freedom which is diffused throughout the country. If
   those who govern that church ... consult the reasonable desires
   of the laity both in the appointment, and the removal of pastors,
   they may long retain their dominion.... But if things are carried
   with a high hand ... , it is easy to foresee how the matter will
   end. That church possesses neither property nor temporal power in
   this country. The laity have both. (221)

Indeed, the trouble with the laity in Philadelphia and elsewhere was too tempestuous and wide-ranging to resolve with a single line of court decisions or even a Papal Bull, however emphatic. The election of trustees held only months later sparked a riot in the St. Mary's churchyard, in which clubs, bricks, and even repurposed iron railings left hundreds wounded. (222) The Pennsylvania legislature responded to the state supreme court by passing a bill that would allow precisely the amendment maneuver that the court had struck down. The governor, acting on the advice of the attorney general, vetoed the bill, but even then the Reverend Hogan held forth at St. Mary's. The local bishop finally surrendered in 1826 and abandoned his attempt to oust Hogan, but the bishop's retreat was vetoed by Rome in 1827 and the standoff continued for the rest of the decade. (223) As one outraged traditionalist described Hogan and his trustees, "This may be republicanism, but it is not catholicism." (224)

Similar battles in Charleston, St. Louis, Cincinnati, Buffalo, Rochester, Detroit, Baltimore, and Norfolk, Virginia, illustrate how widespread the pattern was. (225) In New Orleans, the city was consumed by decades of raucous conflict that pitted Creole leaders and their allies against a harried and miserable French native, Bishop Blanc. The local laity were accustomed to substantial local control, especially under Spanish and then, briefly, French imperial governments. After Louisiana joined the United States in 1803, Catholics in New Orleans successfully defended their beloved pastor, Pere Antoine, against the Church hierarchy, despite the fact that he lived openly with a mulatto concubine, criticized slavery, supported Freemasonry and the French Revolution, and publicly defied the Pope and episcopacy. (226)

In 1844, the decades-long conflict between Catholic prelates reached the Louisiana Supreme Court, which produced a result much like the Pennsylvania Supreme Court's twenty years earlier. The Louisiana court held that trustees retained the right to refuse to pay the salary of a priest appointed by the bishop, even if they did not have the power to choose their own priest over the bishop's objection. (227) A related attack on the power of the trustees under state law failed in the U.S. Supreme Court when the Justices unanimously held that state and local laws were not subject to review under the religion clauses of the U.S. Constitution. (228) Thus survived a New Orleans ordinance mandating that all Catholic funerals be held at a chapel controlled by the trustees--guaranteeing that the lucrative funeral trade would remain under lay control. (229)

For their part, Catholic bishops had attempted to reassert their power after the first American provincial council in 1829. (230) Meeting in Baltimore, exhausted and exasperated bishops legislated against lay organizations holding title to church property and reaffirmed their right to select and remove priests. They then lobbied state legislatures to allow bishops to hold title to property in their episcopal offices, as corporations sole, and were successful in a few states. (231)

In other jurisdictions, however, bishops were greeted with skepticism. Instead of accommodating Catholic canon law or similar authorities in Protestant denominations, these states increased lay control. In 1845, for example, a New York chancery court upheld the decision of a majority of trustees to abandon the Calvinist doctrines of the Reformed Dutch Church and instead become an independent congregation with more liberal "Arminian" leanings that empowered individuals to take control of their own salvation. (232)

Eventually, trustees achieved significant power to appoint or remove clergy, even in hierarchical denominations. In 1854, the New York Court of Appeals construed the state's corporation law to allow congregations to entirely and directly control church property. The court held that a Presbyterian minister could be retained by a congregation even after he had been excommunicated by the presbytery and synod, in the interests of "the entire separation of the functions of the ecclesiastical and temporal judicatories." (233) The next year, a new state statute prohibited conveyance of all real and personal property "for the benefit of any person and his successor or successors in any ecclesiastical office." (234) In other words, New York prohibited the corporation sole, a central feature of American Catholic bishops' attempt to reassert control. Michigan, Ohio, and Pennsylvania followed suit, (235) and other states debated similar legislation. (236)

The attempted recovery of episcopal authority, in other words, was met with a backlash of outsize proportions. One historian of Catholicism even blames the infamous anti-Catholic nativism of the 1840s and '50s on the new American "episcopalism." (237) The vigorous defense of Church authority gradually took root among postfamine Irish immigrants to America, however, as they connected their faith and national allegiance to resistance against British tyranny. (238) In this view, the blending of anti-Irish sentiment with more general anti-Catholicism has obscured the origins of nativism in support for democracy and lay control. The recovery of ecclesiastical power came at a steep price, if we credit the claim that anti-Catholic nativists were motivated to pillage and plunder in part by the bishops' suppression of democratically chosen trustees. (239)

The entrenched antiauthoritarianism of trusteeism and local control did not devolve into secularism, despite the dire predictions of orthodox clerics--and the hopes of late eighteenth-century rationalists. (240) Instead, anything that came between the people and their faith--including priests, presbyters, synods, dioceses, doctrines, and creeds--came under attack. In this way, clerical and denominational power drew down, often despite litigation to protect orthodoxy and traditional authority. The result had democratic features, to be sure. But taking law into account shows us something subtler and less governable. A given congregation might well make democratic decisions, but no dissenter was bound to respect them. The right of exit was always present, even if it might be expensive. The focus on individual freedom of conscience unleashed emotion, enthusiasm, creativity, legal conflict, and eventually legal power. The retreat of the old ways was accomplished with breathtaking speed over the course of just a generation or two. (241)

B. Conscience over Clergy

The commitment to protect individual conscience and to connect that protection to disestablishment traveled as far as the U.S. Supreme Court. In 1844, the Justices considered a case that originated in Philadelphia but implicated many of the questions of lay control and structural limits on religious authority that accompanied disestablishment in the states. (242) In this case, the relationship of disestablishment to secularism was the central question: Did a state without an official posture of deference to religious authority become an opponent of religion, or was it just disestablished? (243) Here again, the question was not separation. This time, the issue was outright opposition to religious authority, as it was in many contemporaneous trusteeism cases. Hostility to religion, a central fear of conservative clerics such as Lyman Beecher in 1818, (244) thus lurked in the interstices of debates over the wealth and management of religious corporations decades after formal disestablishment.

The estate of Philadelphian Stephen Girard, French-born financier of the War of 1812 and the richest American of his day (and one of the richest of any day, according to recent estimates) (245) raised just such thorny questions after he died in 1831. Girard's will left almost his entire estate to municipal and charitable institutions in Philadelphia and New Orleans. (246) Girard had directed that a substantial portion of his estate be dedicated to the education of poor, white, male orphans. (247) The future Girard College of Philadelphia was also subject to a restriction that reflected Girard's complex relationship with the Catholic Church of his youth: no minister was ever allowed to teach on the grounds of the school. (248)

Girard's will was challenged by his French relatives. (249) Given the sums at stake, the family retained the services of the noted orator Daniel Webster, whose core argument was based on the will's insult to religion. (250) Webster, who twenty-five years earlier had argued against religious authority over education in Trustees of Dartmouth College v. Woodward, (251) now sought refuge in piety. When the Girard lawsuit came to the U.S. Supreme Court in 1843, Webster proclaimed, "[T]here can be no charity where the authority of God is derided and his word rejected." (252) Webster's change in focus reflected his sense of prevailing political forces as well as the interests of his clients. He was at that time a candidate for President, and his oral argument was attended by a large crowd. (253)

The Girard case, therefore, though orthogonal to the statutes imposing property restrictions and lay empowerment, raised the implied (and inevitable) question of hostility to religion in a disestablished polity. Justice Joseph Story decided against Girard's French relatives and Webster, but not because the law would tolerate anything that smacked of hostility to religion. Instead, Story was persuaded by the arguments of Horace Binney, who appeared for the City of Philadelphia. Binney maintained that orphans at Girard College should be trusted to follow their own consciences. (254) Story agreed; he held that there was nothing truly anti-Christian about the will's prohibition of ministers teaching at the school. The exclusion of clerics, Story reasoned, did not entail the exclusion of Christianity: "What is there to prevent a work, not sectarian, upon the general evidences of Christianity, from being read and taught in the college by lay-teachers?" (255) The will did require that students be instructed in morality. (256) As Story interpreted this instruction, all morality was grounded in the Bible, and because the authority of clerics was not necessary for a Christian to study the Bible and come to God, the will was not an anti-Christian document. (257) Leading legal minds of the day admired Story's analysis. (258) The French relatives lost the fortune and Girard College opened in 1848. (259)

Individual religious experience was thus protected in state statutes, as well as in their courts and in the U.S. Supreme Court. Religion, in this new legal landscape, was no longer dependent on clerical authority. Yet the system of disestablishment imposed by states in the early nineteenth century was dangerous to religious community, if not hostile to all religion. At that time and since, the fragility of religious organizations has been a remarkable, if little remarked upon, feature of American religious liberty.


The integral relationship in America between disestablishment (the sundering of official ties to government) and schism (the sundering of ties between believers), rather than the imposition of secularism or hostility to religion, is the real story in American church and state before the Civil War. These battles were fought not just over how to define property in secular society, but also over how to conceive of religious property when believers divided. The focus on property was caused not only by limitations set by legislatures and then enforced in courts, but also by the fragmentation of religious organizations as they competed for members. Scholars of religion used to argue that the antebellum religious revivals created an "evangelical united front," which emphasized social control and respectability. (260) No longer. Legal disputes reveal constant warfare over limited resources, as well as cracks in even the most successful denominations--especially in disputes over individual liberty and equality. The greatest battles were those arising out of schisms: the fracturing of community.

Religious groups learned that the greatest danger often came from within the ranks. The communion of believers, protected by incorporation but also subject to lay control, was at once powerful and intensely vulnerable. In these battles, each side fought for the right to retain church property, and thus be considered the "true" society in both legal and religious terms. Congregationalists lost property to Unitarians, Methodists to the breakaway African Methodist Episcopal Church and then the Methodist Episcopal Church South, Baptists to the Southern Baptist Convention, and so on, down to micro-level fractures. State law reports are full of such disputes. (261)

Schism was everywhere. The Catholic hierarchy struggled to cement its authority among the laity by suppressing trusteeism; Protestants broke apart. The "moral ability" of the individual, which caused such excitement and innovation in religious life as well as frequent conflict between clergy and laity, finally became the mallet that fractured the leading Protestant denominations. Conflicts over slavery sundered these denominations a full twenty-five years before the nation followed suit. By the late 1830s, church life became increasingly polarized, as the sinfulness (or divine approbation) of slavery drew church members into debates over the Old Testament, the Ten Commandments, and political quietism, on the one hand, and the humanity of slaves and the perfectibility of American society, on the other. (262)

The Presbyterians came asunder first, with New School synods in New York and Ohio (read Finney) accused of enthusiasm, revivalism, and liberalism by their more orthodox Old School (read Calvinist) brethren. (263) Four liberal synods were excluded from the General Assembly in 1837 and refused readmission the following year. (264) Southern Presbyterians treated abolition as the redheaded stepchild of New School heresies. (265) Finney and his ilk focused on individual investment in salvation, praying salvation up, rather than focusing on helpless believers who depended on the grace of an inscrutable God. The implications for human freedom are obvious, even if the debate among Presbyterians in the late 1830s turned primarily on the theological, rather than the humanitarian, consequences of individualism. (266)

In the resulting litigation over property between New and Old School Presbyterians, Pennsylvania Supreme Court Chief Justice John Gibson imposed a democratic solution to the conflict in 1841. He held that the most numerous group in the state would have the right to the property--"not because [the majority] was more Presbyterian than the [minority], but because it was stronger" in numbers and thus able to claim the property in a democratic polity. (267) In 1845, the conservative-dominated Old School confirmed the suspicions of New School adherents about the unacknowledged relationship between slavery and the schism. The conservatives now declared that slaveholding would not preclude any person from membership, and that the church did not opine on political debates (although it also conceded that there were "evils" connected with slavery). (268) Even with this concession to slaveholders, the Old School conservatives split again into southern and northern sections in 1861.

Baptists fractured, too, in the mid-1840s, with cries from Southerners charging that northern abolitionists undermined the faith when they refused to commission a slaveholding missionary in 1844. After the formation of the Southern Baptist Convention in 1845 (still the largest Baptist communion), conflict between northern and southern branches did not subside. But the story of the Methodists truly marked the nadir, in part because they had so far to fall. (269)

A. Troubled by Conscience

The Methodist Episcopal Church had a stunning record in antebellum America. Its itinerant ministers ranged far and wide, evangelizing along the frontier and deep into rural backwaters. In camp meetings and love feasts, at firesides, and on street corners, the faith grew by leaps and bounds. By the 1840s, the departure of many free blacks to their own denominations allowed white Southerners to worship without the embarrassment of black virtuosity. Methodists remained so powerful among whites across the South that they could still justifiably claim to be a coherent body of the church, representing almost forty percent of the entire national membership. (270) In the North, Methodists had grown even faster, but lost many members in the late 1830s to the "comeouter" antislavery movement. And from 1842 to 1843, a powerful new "abolitionized" schism drew 15,000 dedicated Methodists into a breakaway "Wesleyan Methodist Connection." (271)

In 1844, just as Methodists became the single largest American denomination--with well over a million members--long-simmering debates over the sinfulness of slavery rocked their General Conference in New York City. (272) Alarmed by the success of the comeouter movement, New England delegates had threatened for almost a decade to secede unless slavery was openly declared a sin. Even among less radical northern conferences, antislavery feeling mushroomed as opposition to the expansion of slavery erupted in the acrid debates over the annexation of Texas, as well as theological disputes over sin and salvation. (273) Northerners and Southerners each hardened their stances, reacting increasingly virulently against perceived attacks from the other side. Responding to Southerners' uncompromising rejection of any middle ground, moderates who had long criticized abolitionists as fanatics now found their own "abhorrence of slavery grow[ing] apace." (274)

Debate at the convention waxed heated and long, eventually attracting crowds of those curious to see a live debate over slavery, rather than just reading about such things in the papers. (275) The central question was whether Bishop James Andrew of Georgia should resign because of his recent marriage to a slaveholding widow. (276) Northerners argued that a slaveholding episcopacy would violate the governing antislavery doctrine of the church Discipline, drafted decades earlier before the stunning growth of Methodism in the South, and certainly before Methodist exhorters had recrafted their approach to slavery or become rich enough to own slaves. (277) Finally, after two painful weeks of talk, a vote of 110 yeas to 69 nays signaled the "sense" of the conference that Bishop Andrew must "'desist from the exercise of his office' so long as he remained 'connected with slavery." (278) All but one of the affirmative votes came from nonslaveholding local jurisdictions, and seventy-five percent of the negative votes came from slaveholding counterparts. (279)

Immediately, Southerners began a campaign to separate from the main body of the church. In response, the General Conference delegated the question to a committee, which drafted a "Plan of Separation" (the "Plan") over three momentous days "to meet the emergency with christian kindness and the strictest equity." (280) The idea was to produce a mechanism for each side to withdraw gracefully from the now bitter and public fight. (281) Generous concessions of land and money, the delegates concluded, would ensure a peaceful future. (282) The Plan hewed a rough--and, it turned out, clumsy and controversial--path for conferences in the border states to determine their allegiances between the two Methodisms. (283) The Plan also proposed the formation of a committee, composed of three northern and three southern church leaders, charged with equitably dividing the income and property of the "Book Concerns" based in New York and Cincinnati, including existing copyrights. (284) This publishing house, the first American church publishing venture, had been founded in 1789 to print and promote Methodist sermons, tracts, and memoirs. The Book Concerns became the central feature in protracted litigation over the schism.

After the Plan was approved by the convention in June 1844, the "southern section" moved quickly to call regional conferences for Southerners to consider their options locally, and then to send delegates to a convention in Louisville, Kentucky, to begin on May 1, 1845, exactly one year after the General Conference. (285) Initial support for separation in local conferences was particularly strong in low-lying areas where slavery was most profitable, but by the time of the 1845 Louisville convention, the vote of all southern conferences was ninety-five to two in favor of separation. (286) The Methodist Episcopal Church, South (MECS) was born. Southern reliance on the Plan as the charter for achieving such a division was unanimous. "The Methodist Episcopal Church," pronounced one scholar, "was no longer a national institution." (287) Many studies of the schism end here. (288)

B. The Question of Localism

Or maybe not so fast. The Plan that had been crafted in 1844 was designed to calm the waters, but Southerners' adoption of the template occurred just as northern delegates learned that many of their constituents were outraged at the thought that the church could be split. Methodists married a centralized formal structure of governance with deep localism and local power: "[T]he bone and sinew of American Methodism was its local cast, its face-to-face exhortations, its communitarian quality," wrote one scholar of antebellum Methodism and its many divisions over slavery. (289)

The tension between the localized and centralized aspects of the denomination exploded into full view after 1844. Local Methodist groups in the North argued trenchantly that their own church constitution was one of limited powers and that the General Conference had no capacity to divide what had been created as an indivisible community of faith. To them, the process of salvation was conducted locally, one soul at a time, based on individual conscience and local communities of belief. Across the North, the argument that the General Conference had acted contrary to the denomination's founding constitution gained adherents in late 1844 and early 1845. (290) In Illinois and elsewhere, local conferences decided first that they had final authority and then voted to declare the Plan invalid. (291) Even former supporters began to waver, in light of the "bad temper and unchristian spirit of the South" during and after the Louisville convention. (292) Momentum built in opposition to the Plan first in Ohio, then in Illinois, Baltimore, Philadelphia, and New Jersey, where delegates overwhelmingly voted no. (293)

Especially important, given the rapidity of the response in the South, the issue of property rights in the Book Concerns provided a crucial battleground for Northerners who sought to defend the purity of the church against southern aggression. By the late 1840s, the combined Methodist Book Concerns was the largest publishing organization in the world. The Plan had urged local northern conferences to amend the denominational constitution to allow division of the property. In the northern conferences, a bare majority had endorsed the Plan--mostly in votes taken before the months of debate that fleshed out constitutional objections. Adding in the overwhelming approval of southern conferences only raised the vote to two-to-one in favor. But the church constitution required a three-fourths majority for any constitutional change, so the proposed amendment technically had been defeated by mid-1845. In 1848, the next quadrennial General Conference--minus the "southern section," which by then considered itself a separate Methodism--repudiated the action of 1844 by a large majority and declared all separatist actions taken according to the Plan to be null and void. (294)

The notion that separation would reduce tension was utterly discredited by this controversy. Southerners called their northern brethren hypocrites and liars. (295) Most scholarship on the schism is of considerable vintage. As late as 1923, the most thorough study of the events of the late 1840s sympathized with the South: "[S]peaking in all charity, we cannot help feeling that it was a mistake to repudiate the Plan of Separation." (296) Revisiting the battles in the twenty-first century, it is clear that the relationship between slavery and salvation could not be resolved by a simple "plan." Equally important, the issue of local power and individual religious experience was wrapped up in these debates, making race a key component of politics as well as faith. Northern Methodists were convinced that concession on such matters was fundamentally contrary to Methodism itself.

Although some desultory correspondence occurred between the North and South after the 1848 General Conference, it produced nothing to appease the South: in June 1849, the MECS commissioners filed suits in federal courts in Cincinnati and New York. (297) Suddenly but predictably, arguments over the schism were channeled into the courts. Given the Pennsylvania Supreme Court's 1841 decision in Presbyterian Congregation v. Johnston that the majority rules, (298) Northerners might well have hoped that their greater numbers would be a bulwark against MECS's claims to the Book Concerns. The litigation pitted the largest denomination in the country against its dissenting former members--a painful and public airing of the long-simmering conflict over the relationship between local control and human rights, on the one hand, and the untouchable issue of slavery, on the other.

The New York case, where the most money was at stake, featured a lineup of leading members of the New York and Boston bars and was tried before U.S. Supreme Court Justice Samuel Nelson, riding circuit, and District Court Judge Samuel Betts. (299) Representing MECS, Daniel Lord (founder of the law firm Lord, Day & Lord) argued that anything not explicitly forbidden by the church constitution should be left to the discretion of the General Conference. (300) In other words, the South argued for a presumption of power in the central government of the church and that local jurisdictions should be powerless to override this government, including even the decision whether to separate or not--a striking departure from traditional associations with southern localism. (301) Learned counsel for the opposition, the well-known litigator Rufus Choate of Boston, argued that even if the Conference had the power to enact the Plan of Separation, it was now void because the stipulated conditions had not been met. (302) The implication was that the MECS had lost all rights to the Book Concern property by severing itself from the only valid American Methodist church.

C. Mere Money

The New York case excited widespread press attention and oft-repeated "regrets" that men of God should be battling so vigorously over funds (a central feature, of course, of the many cases that featured battles over worldly goods). And apparently there were substantial sums at stake. Although no formal valuation appears in the record, the capital of Book Concern in New York was placed at "nearly a million of dollars" by Justice Nelson, writing for the Court in the Swormstedt appeal. (303) The MECS newspaper, Christian Advocate and Journal, squirmed at the publicity: "The idea of a litigation between two religious bodies, in relation to money, has a rather bad appearance, and always gives occasion for scandal." (304) Even the judges and lawyers advised the litigants to settle the case rather than expose themselves further. As Justice Nelson put it at the close of the trial but before issuing his opinion, "[T]he good feeling and Christian fellowship of the different sections of the Church will be much better [served] by an amicable and friendly adjustment of this controversy than by any legal disposition of it by the Court." (305) But when they met to discuss the case, the two sides were so far apart that negotiations proved fruitless. (306)

Justice Nelson's opinion was a resounding victory for the South. He had long been known as a supporter of the South and slavery, and his opinion confirmed this predisposition. (307) The "action of the several annual conferences in the slave-holding states," Nelson held, was the only requirement under the Plan of Separation to establish "an absolute division of the church organization" into "two separate bodies." (308) The General Conference, in this view, was the plenary authority. The annual, local meetings were essentially dependent upon the general convention, which "from time to time" conferred authority and power on the local bodies, such as the power conferred on the southern section to determine whether division was required because of the "deep and irreconcilable" opinions of the two sections regarding the ownership of slaves by the ministry. (309) The moment the decision to separate was taken at Louisville, Nelson held, division of the property became operative: "[T]he division of the property was but a consequence of separation, subordinate, and of comparative insignificance. Instead of the division of the church depending upon the division of the common property, the very reverse is the result of the true construction of the plan of separation." (310) And then, because the northern church could not apportion the property without amending the church constitution, "[t]he law steps in and enforces the right." (311)

In this way, the court forcibly amended the constitution of the Methodist Church, an extraordinary step, even for antebellum judges. Justice Nelson was firm in his assertion that principles of law and equity required judicial interference to ensure that the fund was properly divided. The issue was far from over, however. Nelson's opinion was attacked in the northern press, in part on the ground that his reasoning and language so closely mirrored Lord's pro-southern argument. (312)

The following year in Cincinnati, Circuit Judge Humphrey Leavitt reached the opposite conclusion in a long and painstaking opinion, evidently written despite some trepidation that he was flouting the opinion of a sitting U.S. Supreme Court Justice. (313) The Cincinnati branch of the Book Concern was founded in 1820 and incorporated by an act of the Ohio legislature in 1839 expressly to "conduct the business of the Concern in conformity with the rules and regulations of the said general conference." (314) Like the New York Concern, it had grown in value, and its profits were dedicated entirely to the relief of traveling preachers who were "superannuated, and the widows and orphans of those who were deceased." (315) The "unfortunate controversy" between the two Methodisms in this case was identical to the New York battle. (316)

Judge Leavitt's interpretation of the powers delegated to the General Conference in the church constitution directly contradicted Nelson's: Leavitt stressed that the Conference's authority was enumerated rather than plenary. He held, "The power of change--of destruction itself--doubtless exists somewhere; but, if it has not been expressly delegated, it remains with those who are the original depositaries of all power"--that is, with the membership. (317) Such a construction, Leavitt maintained, was mandated by the restrictions on the General Conference (such as the requirement that any alteration of the beneficiaries of the Book Concern must be approved by a two-thirds vote of a General Conference and then a three-fourths vote of the local annual conferences). This conclusion was also supported by democratic principles and "our republican institutions," which Leavitt found to be consistent with a local form of governance rather than a centralized, plenary authority. (318)

Even southern partisans had conceded this point in their objections to the treatment of Bishop Andrew in 1844 at the General Conference, Leavitt pointed out. At that time, outraged Southerners argued that the General Conference had no power to "represent" the church as a whole, because it only had "limited powers to do its business in the discharge of a delegated trust." (319) And while the southern section certainly had the power to "withdraw" from the church, it could not negotiate terms for division, which the General Conference had no power to promise on its own, and which the annual conferences had repudiated. (320) Instead, what happened at the General Conference reflected only the "collisions of a warm discussion of [slavery] in the conference, [which threw off] some sparks of unholy fire," (321) not a legally cognizable contract to divide the property.

The federal courts, then, disagreed over the question, just as the nation had done. Southerners argued for strong centralized church governance and were sustained by a New York judge who was a northern man with southern principles. In Ohio, Judge Leavitt, a Whig (who was no radical--he later refused to join the Republican Party) (322) decided in favor of individualism and localism. The New York case was never appealed, in part because negotiations between the parties were revived after the decision was handed down. But the Ohio case went up to the U.S. Supreme Court, where none other than Justice Nelson reversed the decision below. (323) Given that he wrote the opinion below in the companion case, his participation in the appeal would today be considered an obvious violation of judicial ethics. Writing such an opinion would have been untoward even in the mid-nineteenth century, when sitting senators routinely argued Supreme Court cases and trial judges commonly sat on appeals in their own or companion cases in territorial supreme courts.

Perhaps because of such lapses in judgment, Samuel Nelson never became a revered jurisprude. (324) He is obscure today, known primarily as the author of the original majority opinion in the Dred Scott case. Nelson's draft became a separate concurrence after Chief Justice Taney decided that he would write a far more broad-ranging and powerfully worded opinion, which catered to southern sentiment. (325)

In Smith v. Swormstedt, (326) Nelson copied whole sections of his opinion from the earlier New York circuit court opinion. (327) He also avoided the substance of the dispute at the 1844 General Conference that triggered the Plan of Separation and all subsequent litigation, concluding implausibly that the "causes" of the schism were "not important particularly to refer to." (328) The opinion did not mention slavery or slaveholding by members of the Methodist clergy. (329) Instead, Nelson focused on the powers of the General Conference, which he held to be the "highest authority" in Methodism, and which had divided itself voluntarily into two new and distinct bodies, neither of which was the same as the national church before 1844. (330) The pro rata division of the property followed "as a matter of law," Nelson intoned once again, despite the objection that the church constitution explicitly required local conferences to approve changes in distribution. (331) After this crushing defeat at the hands of Justice Nelson, delegates from the southern and northern Methodisms finally agreed on the payment of $251,000 from North to South. (332)

Scholars have long argued that the schisms in the churches foreshadowed the political schism that rent the country after 1860. Some have even implied that the secessions of southern churches were critical to the erosion of national loyalty that led to the political secessions of 1861 and the onset of civil war. (333) Certainly President Lincoln viewed the northern Methodists' support as vital to the war effort. In 1864, he wrote to thank that church in particular, for it sent "more soldiers to the field, more nurses to the hospitals, and more prayers to Heaven than any." (334)

Yet all overlooked the relationship between disestablishment, legal restrictions on religious organizations, and schism in pre-Civil War America. Justice Joseph Story wrote in the 1830s that disestablishment had the goal of eliminating "all rivalry among Christian sects." (335) In reality, the discipline imposed on churches after disestablishment undergirded the development of a fiercely competitive religious culture based on the commitment to uncoerced liberty of belief. The protection of individual conscience, however, did not end conflict and division over religious questions. Despite the claims of Americans that they had "solved" the great problem of church and state, (336) the truth on the ground was far less rosy.

Disestablishment raised the issue of the moral ability of all individuals, enslaved or free, but the same focus on individual conscience made religious organizations more vulnerable to fracture. Paradoxically, this weakness was integrally related to the strength and vibrancy of religious life in antebellum America. It also coexisted with significant state oversight of religious organizations and limitations on their power to hold and control wealth. Viewed from up close, the first system of disestablishment was turbulent, messy, and often intrusive.


The most poignant lesson of this story is that individual empowerment in religious life was a key component of disestablishment--an essential complement to the limits on wealth and power imposed on religious institutions. (337) This new American landscape consisted primarily of three components: government protection through the corporate form, limitations on wealth, and imposition of lay control.

Many Americans, especially those of the Tea Party persuasion, venerate "Christian" liberty (together with small government) as a central pillar of an inspired national Constitution. (338) In this story, they overlook the key features of legislation and the judicial management of disestablishment. In reality, this world was built just as much from political, legal, and religious furnishings of state legislation in the early nineteenth century as from the convictions of individual believers. Regulation, in the form of property limitations and lay control, both imposed by states, was widely understood as the surest means of protecting individual liberty to believe.

To the extent that history should govern our understanding of contemporary debates, this Article establishes that protection of the individual against the power of religious organizations was the central preoccupation of those charged with implementing the new law of religious liberty. Refusal to provide birth control to employees, campaigns against marriage equality, protection of religious organizations whose officials have sexually abused vulnerable parishioners, and even tax exemptions for religious property (not to mention tax-exempt bond funding) all look different when viewed through this lens. Seeing like a state in the first era of disestablishment means attending to the sovereign people, allowing them to choose, and allowing them to change their minds. This regime was a difficult one with respect to the stability of religious organizations, but a productive one nonetheless.

Equally important, church property cases are widespread again in a new age of schism. A growing number of states have embraced the Supreme Court's most recent case on the question, Jones v. Wolf. (339) In that case--which arose when conservatives sought to leave a Presbyterian church in Georgia after the national denomination approved the ordination of women--the Court held that states may validly use "neutral principles of law" to decide such disputes. (340) Courts may impose secular standards where cases arise out of disputes that begin in doctrine and practice of the faith but involve temporal assets. (341) This standard, which was first adopted by the Court in the late 1970s, has proven difficult to apply, but more reliable than a standard of deference to religious hierarchy. (342) Those who defend "church autonomy" or "the freedom of the church" oppose the Wolf standard vigorously, often on historical grounds that appear unsustainable in light of the research presented here. (343)

When church autonomy and separation are out of the picture, the landscape shifts: just as it was at the inception, state protection of the rights of individual believers, rather than institutions, becomes the central focus of disestablishment. Government involvement in disputes over the rights of religious institutions traditionally protected individual conscience rather than institutional autonomy. In this light, disestablishment has a powerful moral core, one which has had great influence in religious life and law, but which has been too often overlooked.

(1) For litigation and political controversy surrounding such claims, see Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 706 (2012) (rejecting an employment discrimination claim based on the "ministerial exception"); Doe v. Holy See, 557 F.3d 1066, 1069 (9th Cir. 2009) (upholding jurisdiction over the Vatican under the Foreign Sovereign Immunities Act); Moses v. Diocese of Colorado, 863 P.2d 310, 319, 331 (Colo. 1993) (upholding tort damages for clergy against First Amendment defense); Fortin v. Roman Catholic Bishop of Portland, 871 A.2d 1208, 1232 (Me. 2005) (affirming diocese's duty to protect against the tortious acts of its clergy); John Eligon & Laurie Goodstein, Kansas City Bishop Convicted of Shielding Pedophile Priest, N.Y. TIMES (Sept. 6, 2012), priest.html (reporting on the first American Catholic bishop criminally convicted for failure to report child abuse); Robert Pear, Bishops Reject Birth Control Compromise, N.Y. TIMES (Feb. 7, 2013), (describing the fight over whether religious employers should be exempt from laws requiring insurance coverage for contraception).

(2) See Richard W. Garnett, Religious Liberty, Church Autonomy, and the Structure of Freedom, in CHRISTIANITY AND HUMAN RIGHTS: AN INTRODUCTION 267 (John Witte, Jr. & Frank S. Alexander eds., 2010) (arguing that religious communities should enjoy autonomy and freedom from state intervention); see also Richard W. Garnett, Do Churches Matter? Towards an Institutional Understanding of the Religion Clauses, 53 VILL. L. REV. 273, 295 (2008) ("[T]he existence and independence of religious institutions--self-defining, self-governing, self-directing institutions-are needed ... to check ... secular power" (internal quotation marks omitted)); Richard W. Garnett, The Freedom of the Church, 4 J. CATH. SOC. THOUGHT 59, 61 (2007) (suggesting that the libertas ecclesiae principle of freedom of the church is essential for understanding the First Amendment); Paul Horwitz, Churches as First Amendment Institutions: Of Sovereignty and Spheres, 44 HARV. C.R.-C.L.L. REV. 79, 107 (2009) (arguing that religious institutions embody their own "spheres" of autonomy while still recognizing the "fundamental importance of the state").

(3) Compare Steven D. Smith, Freedom of Religion or Freedom of the Church? 23-27, 34-38 (Univ. of San Diego Sch. of Law Legal Studies Research Paper Series, Paper No. 11-061, 2011) (arguing that the religion clauses commonly credited actually refer only to religious organizations), with Richard Schragger & Micah Schwartzman, Against Religious Institutionalism, 99 VA. L. REV. 917, 969 (2013) ("[R]ights of conscience ... could account for most of the pressing issues involving religious groups, without any reference to church or religion.").

(4) Amy Bingham, Gingrich Blasts Obama's Birth Control Policy as "Outrageous Assault" on Religion, ABC NEWS (Feb. 5, 2012), outrageous-assault-on-religion.

(5) America's Legacy of Religious Liberty--Pass It On, AMS. UNITED, religious.pdf (last visited Dec. 6, 2013).

(6) See Rob Boston, Falsehoods, By George!: Religious Right Seeks Retroactive Baptism of America's First President, WALL OF SEPARATION (Apr. 16, 2013), religious-right-seeks-retroactive-baptism-of-america-s (claiming that no evidence supports the assertion that George Washington worked to connect church and state); Rob Boston, Freedom from Foolishness?: Texas Gov. Misconstrues Religious Liberty, WALL OF SEPARATION (June 14, 2013), fromfoolishness-texas-gov-misconstrues-religious-liberty (arguing that Thomas Jefferson and other early American leaders drafted the First Amendment to protect freedom, not religious organizations).

(7) See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (holding that employer retail chain may invoke a religious objection to the Affordable Care Act's birth control provisions), cert. granted, No. 13-354, 2013 WL 5297798 (U.S. Nov. 26, 2013).


(9) See generally BUCKLEY, supra note 8; 2 WILLIAM G. MCLOUGHLIN, NEW ENGLAND DISSENT, 1630-1883: THE BAPTISTS AND THE SEPARATION OF CHURCH AND STATE (1971) (tracing the opposition to religious establishment in New England).

(10) See, e.g., Everson v. Bd. of Educ., 330 U.S. 1, 17-18 (1947) (incorporating the Establishment Clause into the Due Process Clause and holding that history dictates state payment for transportation of parochial school students was constitutional); id. at 33-44 (Rutledge, J., dissenting) (arguing that history directly prohibited such payments); Reynolds v. United States, 98 U.S. 145, 162-64 (1879) (relying on the history of Virginia to determine the scope of protection for religiously inspired behavior); HOWE, supra note 8.

(11) There is no clear consensus regarding the Establishment Clause's intended meaning when it was ratified in 1791--a factor that continues to fuel debate today. Compare DANIEL L. DREISBACH, THOMAS JEFFERSON AND THE WALL OF SEPARATION BETWEEN CHURCH AND STATE (2002) (arguing that Thomas Jefferson's "wall of separation" did not contemplate a complete barrier of church and state), with LEONARD W. LEVY, THE ESTABLISHMENT CLAUSE: RELIGION AND THE FIRST AMENDMENT (2d ed., rev. 1994) (arguing that history reveals that the Establishment Clause prohibits all public support for religion).

(12) Virginia is the exception to the rule and has received scholarly treatment in this area. See generally, e.g., DREISBACH, supra note 11; Thomas E. Buckley, Evangelicals Triumphant: The Baptists' Assault on the Virginia Glebes, 1786-1801, 45 WM. & MARY Q. 33 (1988) (examining Virginia politics in the period after disestablishment). For a broader perspective on what free exercise meant in the states, see Sarah Barringer Gordon, Blasphemy and the Law of Religious Liberty in Nineteenth-Century America, 52 AM. Q. 682 (2000).

(13) The great evangelist Charles Grandison Finney made a similar point about religion, focusing on salvation not as an end but as a beginning. GILBERT HOBBS BARNES, THE ANTISLAVERY IMPULSE: 1830-1844, at 9-12 (reprint 1957) (1933).

(14) In two states, the legislatures went further, actively declaring much religious land forfeited to the state. Virginia's Glebe Act of 1802 has long been known to specialists. See generally Buckley, supra note 12. Vermont's 1805 decision to redirect all unoccupied glebe lands to the public schools lay buried in the archives until recently, however. See Sarah Barringer Gordon, The Landscape of Faith: Religious Property and Confiscation in the Early Republic, in MAKING LEGAL HISTORY: ESSAYS IN HONOR OF WILLIAM E. NELSON 13, 30 (Daniel J. Hulsebosch & R.B. Bernstein eds., 2013).

(15) See infra notes 61, 63 & 64 and accompanying text.

(16) See infra notes 73-75 and accompanying text.

(17) See infra notes 60-79 and accompanying text.

(18) W.E.B. DU BOIS, THE SOULS OF BLACK FOLK (reprint 1973) (1953).

(19) See, e.g., ALA. CONST. of 1819, art. I, [section] 7; CAL. CONST. of 1849, art. I, [section] 4; CONN. CONST. of 1818, art. 1, [section] 3; DEL. CONST. of 1792, art. I, [section] 1; FLA. CONST. of 1838, art. I, [section] 3; GA. CONST. of 1798, art. IV, [section] 10; ILL. CONST. of 1818, art. VII, [section] 3; IND. CONST. of 1816, art. I, [section] 3; IOWA CONST. of 1846, art. I, [section] 3; KAN. BILL OF RIGHTS [section] 7 (1859); KY. CONST. of 1792, art. XII, [section] 3; ME. CONST. of 1819, art. I, [section] 3; MD. DECLARATION OF RIGHTS of 1776, art. XXXIII; MASS. CONST. amend. 11 (1833); MICH. CONST. of 1835, art. I, [section][section] 4-6; MINN. CONST. of 1857, art. I, [section] 16; MISS. CONST. of 1817, art. I, [section] 4; MO. CONST. of 1820, art. XIII, [section] 5; N.H. CONST. of 1792, pt. I, art. VI; N.J. CONST. of 1776, art. XIX; N.Y. CONST. of 1777, art. XXXVIII; N.C. CONST. of 1776, art. XXXIV; OHIO CONST. of 1802, art. VIII, [section] 3; OR. CONST. of 1857, art. I, [section][section] 2-5; PA. CONST. of 1776, art. II; R.I. CONST. of 1842, art. I, [section] 3; S.C. CONST. of 1790, art. VIII; TENN. CONST. of 1796, art. XI, [section] 3; TEX. CONST. of 1845, art. I, [section] 4; VT. CONST. of 1793, ch.1, art. III; VA. CONST. of 1830, art. III,[section] 11; WIS. CONST. art. I, [section] 18. Louisiana is the sole exception to this constitutional rule. The Louisiana Constitution of 1812 did not include a specific disestablishment clause. However, Congress voted to admit the new state because the enabling act of February 18il instructed the Orleans Territory drafting convention that its proposed constitution must contain "the fundamental principles of civil and religious liberty." When considering the proposed constitution for the State of Louisiana, Congress stipulated that the requirements of the 1811 act were "deemed" to be part of the constitution. Thus Congress expressly concluded that Louisiana was a disestablished polity. See generally ANSON PHELPS STOKES, CHURCH AND STATE IN THE UNITED STATES 156 (rev. ed. 1964) (1950). Only in 1921 did Louisiana amend its constitution to prohibit an establishment of religion, making explicit what had been required by Congress all along. LA. CONST. of 1921, art. I, [section] 4.

(20) See, e.g., MCGARVIE, supra note 8, at 3-20.

(21) Even Carl Zollman, the most serious student of the law of religion after disestablishment, apparently never read a statute. His chapter on religious corporations notes that a few mortmain statutes limited real property, but fails to recognize most of these, and entirely misses income limits. See CARL ZOLLMAN, AMERICAN CIVIL CHURCH LAW 80-110 (1917).


(23) Id.

(24) The mortmain statute of Edward I, known as "statutum de viris religiosis," declared that "religious men have entered as well into their own fees as into the fees of other men ... [and those] services that are due ... and which at the beginning were provided for the defence of the realm are wrongfully withdrawn" and the escheats lost. RICHARD WHALLEY BRIDGMAN, THE LAW OF CHARITABLE USES, AS LAID DOWN AND DIGESTED BY GEORGE DUKE, ESQ. IN 1676, TOGETHER WITH THE LEARNED READINGS OF SIR FRANCIS MOORE 193 (London, W. Clarke & Sons 1805). Feudal law favored ownership by a natural person, subject to death as well as forfeiture for crime or treason. Mortmain statutes restricted the creation of new mortmains and allowed the king and his lords to effect seizures for violations thereof. See Charles W. Sloane, Mortmain, in lo THE CATHOLIC ENCYCLOPEDIA 579, 580 (Charles G. Herbermann et al. eds., The Encyclopedia Press 1913) (1911). Edward's statute was vigorously enforced by mesne lords and the crown, at least through the end of the fourteenth century. See generally SANDRA RABAN, MORTMAIN LEGISLATION AND THE ENGLISH CHURCH, 1279-1500, at 72-101 (1982).

(25) STRONG, supra note 22, at 69.

(26) For example, he campaigned for a "Christian Amendment" to the Constitution, which ultimately failed. See Morton Borden, The Christian Amendment, 25 CIV. WAR HIST. 156, 160-61 (1979) (detailing Strong's support of a constitutional amendment declaring the United States a Christian nation).

(27) States struggled with these challenges to a greater extent than the federal government, which controlled only the District of Columbia and eventually the territories. When confronted with this issue, however, the federal government also struggled. See, e.g., An Ordinance for the Government of the Territory of the United States North West of the River Ohio, 32 J. CONT'L CONG. 334, 339-41 (U.S. Gov't Printing Office 1936) (1787) (protecting religious liberty in federal territory).


(29) Gov. Levi Lincoln, Veto Message, 16 February 1827, in RESOLVES OF THE GENERAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS, 1824-1828, at 475 (Bos., Dutton & Wentworth 1828).

(30) See JOSEPH K. ANGELL & SAMUEL AMES, A TREATISE ON THE LAW OF PRIVATE CORPORATIONS AGGREGATE 129-31, 148-51 (Bos., Hilliard, Gray, Little & Wilkins 1832).

(31) See, e.g., Pauline Maier, The Revolutionary Origins of the American Corporation, 50 WM. & MARY Q. 51, 53 (1993) (noting Massachusetts's large number of corporate charters for religious organizations in the 1780s and 1790s); see also Paul G. Kauper & Stephen C. Ellis, Religious Corporations and the Law, 71 MICH. L. REV. 1499, 1505-09 (1973) (reviewing briefly the incorporation of religious organizations in colonial America).

(32) See 3 PROCEEDINGS AND DEBATES OF THE CONVENTION OF THE COMMONWEALTH OF PENNSYLVANIA 213-23 (Harrisburg, Packer, Barrett & Parks 1837) [hereinafter PROCEEDINGS AND DEBATES OF PA.] (listing corporations formed from 1777 to 1791).

(33) Act of April 6, 1791, pmbl., PA. DIGEST OF LAWS 181 (Stroud 1841).

(34) See 3 PROCEEDINGS AND DEBATES OF PA., supra note 32, at 213.

(35) See id. at 214-22.

(36) See Maier, supra note 31, at 82 (examining one perspective regarding "the proliferation of corporations"). For a claim that incorporation itself was a form of establishment, see Douglas G. Smith, The Establishment Clause: Corollary of Eighteenth-Century Corporate Law?, 98 NW. U. L. REV. 239, 241 (2003).

(37) The violent secularism of the French Revolution had less purchase in the American context, despite avid support for disestablishment. See People v. Ruggles, 8 Johns. 290, 294 (N.Y. Sup. Ct. 1811) (declaring that the United States would not follow France by defaming or oppressing religion).

(38) For example, the colony of Georgia did not establish the Church of England in its initial charter. Joel A. Nichols, Religious Liberty in the Thirteenth Colony: Church-State Relations in Colonial and Early National Georgia, 80 N.Y.U.L. REV. 1693, 1704-05 (2005).

(39) For a discussion of anti-Church of England rhetoric in the buildup to the American Revolution, see Gordon, supra note 14, at 13-19. For treatments characterizing the French Revolution as more radical, especially with regard to religion (but also to corporations), see generally NIGEL ASTON, RELIGION AND REVOLUTION IN FRANCE, 1780-1804 (2000); WILLIAM H. SEWELL, JR., WORK AND REVOLUTION IN FRANCE: THE LANGUAGE OF LABOR FROM THE OLD REGIME TO 1848 (1980).

(40) For other examples of such borrowing, see Gordon, supra note 12, at 683, 696, on the United States' adoption of English blasphemy jurisprudence.

(41) William G. McLoughlin, Isaac Backus and the Separation of Church and State in America, 73 AM. HIST. REV. 1392, 1403-04 (1968).

(42) See generally Maier, supra note 31, at 58-64.

(43) See DANIEL WALKER HOWE, WHAT HATH GOD WROUGHT: THE TRANSFORMATION OF AMERICA, 1815-1848, at 503 (2007) (noting the Democrats publicly blamed the banks for the Panic of 1837); JAMES WILLARD HURST, THE LEGITIMACY OF THE BUSINESS CORPORATION IN THE LAW OF THE UNITED STATES, 1780-1970, at 32-44 (1970) (documenting nineteenth-century fears that corporations would upset the balance of power in the markets); Maier, supra note 31, at 71-72 ("Charges that corporations corrupted the political system became commonplace during the 1830s after the Second Bank of the United States bestowed substantial favors on Congressmen in an effort to have its charter renewed.").

(44) See, e.g., 6 DEBATES OF THE CONVENTION TO AMEND THE CONSTITUTION OF PENNSYLVANIA 554 (Harrisburg, Benjamin Singerly 1873) (statement of Rep. Kaine) (remarking that railroads are chartered to serve the people, yet operate for "the exclusive benefit of the corporations themselves"); 7 PROCEEDINGS AND DEBATES OF THE CONVENTION OF THE COMMONWEALTH OF PENNSYLVANIA 87-90 (Harrisburg, Packer, Barrett & Parks 1838) (statement of Rep. Ingersoll) (blaming banks for social ills such as class division and rural poverty); Maier, supra note 31, at 68 (summarizing criticisms of corporations as destructive to democracy).

(45) See Gordon, supra note 14, at 23-27; An Act to Repeal the Act for Incorporating the Protestant Episcopal Church and for Other Purposes, 12 VA. STAT. ch. 12, at 266-67 (1786) (Hening 1823); see also VA. CONST. art. IV, [section] 14 (repealed 2006) ("The General Assembly shall not grant a charter of incorporation to any church or religious denomination, but may secure the title to church property to an extent to be limited by law."); H.J. ECKENRODE, SEPARATION OF CHURCH AND STATE IN VIRGINIA 129 (1910) ("The repeal of the incorporation act definitely marks the separation of church and state in Virginia."). See generally BUCKLEY, supra note 8, at 144-72; G. MacLaren Brydon, The Antiecclesiastical Laws of Virginia, 64 VA. MAG. HIST. & BIOGRAPHY 259 (1956). A federal lawsuit by the Reverend Jerry Falwell finally toppled the old rule, although the teeth of the prohibition had long been pulled by judicial doctrine recognizing trustees as empowered to control the property of unincorporated religious organizations. Falwell v. Miller, 203 F. Supp. 2d 624, 632 (W.D. Va. 2002).

(46) For Madison's veto message overturning "An Act Incorporating the Protestant Episcopal Church," see H. JOURNAL, 11th Cong., 3d Sess. 566-67 (1811).

(47) Justice Joseph Story criticized Virginia's disestablishmentarian excesses, stating that the influence of French radicalism in the state legislature had led to dangerous denials of all religious property, a precedent that could be (but fortunately had not been) extended to undermine title to all property. Terrett v. Taylor, B U.S. (9 Cranch) 43, 50-52 (1815).

(48) THOMAS E. BUCKLEY, ESTABLISHING RELIGIOUS FREEDOM: JEFFERSON'S STATUTE IN VIRGINIA 117, 128, 41-43 (2013); cf. PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE 130 (2002) (arguing that supporters of disestablishment elevated politics to the level of religion).

(49) See Baker v. Fales, 16 Mass. 488, 521-22 (1820) ("[A]n inconvenience of this [financial] sort will never be felt, when a case of conscience is in question.").

(50) STRONG, supra note 22, at 40.

(51) William J. Novak, The Myth of the "Weak" American State, 113 AM. HIST. REV. 752, 766-67 (2008), argues that government in America has been sprawling yet intensely localistic, a pattern that broadly fits disestablishment and the incorporation statutes this Article examines, but that does not capture the partial delegation of authority contained in general incorporation statutes. It is also worth noting that, over time, the discipline eroded and the privilege extended, especially for religious corporations. See Sarah Barringer Gordon, Antidisestablishmentarianism: Tax Exemptions and the Growth of Government Support for Religion in the Late Nineteenth Century (n.d.) (unpublished manuscript) (on file with author) (documenting the rapid increase in church wealth and power after the Civil War). Yet Novak's central claim is a valuable corrective. For a related qualification of Novak's argument, see generally Gary Gerstle, A State Both Strong and Weak, 115 AM. HIST. REV. 779 (2010), which argues that the U.S. government's reluctance to restrict the influence of corporations and markets is as characteristic of U.S. history as the assertion of state power. In addition, see generally LAURA F. EDWARDS, THE PEOPLE AND THEIR PEACE: LEGAL CULTURE AND THE TRANSFORMATION OF INEQUALITY IN THE POSTREVOLUTIONARY SOUTH (2009), which asserts that localism survived without substantial change into the third decade of the nineteenth century. Edwards's study, however, does not address the key role of religion in the maintenance of social discipline.

(52) See STRONG, supra note 22, at 17-21.

(53) See Gordon, supra note 14, at 17; Elizabeth Mensch, Religion, Revival, and the Ruling Class: A Critical History of Trinity Church, 36 BUFF. L. REV. 427, 429, 566 (1987). For Trinity Church's current holdings, see TRINITY WALL STREET, (last visited Dec. 6, 2013).


(55) Id.

(56) Act of Apr. 6, 1784, 1784 N.Y. LAWS ch. 18, at 613-18; N.C. ACTS ch. 11, at 93 (1796); Act of Apr. 6, 1791, [section] 4, 1790-1791 PA. ACTS ch. 27, at 42-43.


(58) Id.

(59) Id.

(60) See Act of Dec. 22, 1840, [section] 1, 1840 IOWA LAWS 9, 9-l0. California allowed religious organizations to hold four lots in a town or city and twenty acres in the country. Act of April 22, 1850, CAL. DIGEST OF LAWS ch. 6, [section] 182, at 57 (Wood 1857).

(61) See Act of Jan. 8, 1803, [section] 8, 1802-1803 MD. LAWS ch. 111; 1854 N.C. REV. CODE ch. 97, [section] 2, at 500 (Moore & Biggs 1855); VA. CODE tit. 22, ch. 77, [section] 12, at 363 (1849); see also D.C. Organic Act of 1801, [section] 1, 2 STAT. 103, 103-05 (incorporating the laws of Virginia and Maryland respectively).

(62) An Act to Secure Religious Societies Within this Territory in the Possession of Their Churches, and Other Property, [section] 2, 1838-1839 WIS. STAT. 136, 136.

(63) Act of Feb. 1, 1814, 1813-1814 KY. ACTS ch. 164, at 211-12.

(64) GA. DIGEST OF LAWS 1070 (Cobb 1851); Act effective Mar. 1, 1835, [section] 1, 1834-1835 ILL. LAWS 147, 147; Acts of Apr. 16, 1838, and July 2, 1839, PA. LAWS. [section][section] 73-74, at 942 (Purdon & Brightly 1862); Act of Jan. 17, 1844, 1843-1844 TENN. ACTS ch. 110, at 138.

(65) 1846-1847 FLA. ACTS ch. 84, [section] 38, at 36; see also Act of Jan. 30, 1845, [section] 5, TEX. DIGEST OF GEN. STAT. LAWS, art. 2066, at 444 (Oldham & White 1859) (exempting up to ten acres from taxation).

(66) Act of Feb. 5, 1819, [section] 3, 1818-1819 OHIO ACTS ch. 54, at 121.

(67) Act of Dec. 7, 1837, [section] 1, 1837 ARK. REV. STAT. 657, 657-58 (Ball & Roane 1838).

(68) Act of Feb. 12, 1858, [section] 4, 1858 KAN. LAWS ch. 66, at 350; see also Act of Apr. 1, 1834, 1834 MASS. LAWS ch. 183, [section] 7, at 268; 1839 VT. REV. STAT. ch. 81, [section] 13, at 394.

(69) 1854 N.C. REV. CODE ch. 97, [section] 2, at 500 (Moore & Biggs 1855).

(70) 1 MICH. COMP. LAWS ch. 68, [section] 9, at 662 (Cooley 1857).

(71) Id. [section] 3, at 500 (setting limit for any single church).

(72) DEL. REV. STAT. ch. 39, [section] 11, at 106 (1852).

(73) Act of Dec. 22, 1840, [section] 1, 1840 IOWA LAWS 9, 9-10; Act of July 3, 1827, 1827 N.H. LAWS ch. 36, at 186.

(74) 1860 MD. CODE art. 26, [section] 89, at 116.

(75) 1857 ME. REV. STAT. ch. 12, [section] 3, at 196; MINN. PUB. STAT. ch. 17, [section] 21, at 280 (Sherburne & Hollinshead 1859); 1858 WIS. REV. STAT. ch. 66, [section] 8, at 419.

(76) PA. DIGEST OF LAWS 145-46 (Purdon & Brightly 1862).

(77) 1854 N.C. REV. CODE ch. 97, [section] 3, at 500 (Moore & Biggs 1855) (setting limit for churches or denominations).

(78) Act of Apr. 22,185, CAL. DIGEST OF LAWS oh. 6, [section] 182, at 57 (Wood 1857).

(79) Act of July 1, 1862, [section] 3, 12 Stat. 501, 501-02 (1862) (imposing the limit on federal territories); ALA. CODE [section] 1262, at 275 (Ormond, Bagby & Goldthwaite 1852); 1857-1858 TENN. CODE [section] 1472, at 319 (Meigs & Cooper 1858).

(80) Act of Mar. 16, 1786, [section] 1, 1785-1786 N.J. ACTS ch. 129, [section] 1, at 255-56.

(81) See infra note 136.

(82) Act of Apr. 5, 1813, [section] 1, 3 N.Y. REV. STAT. 292, 292-93 (1829).

(83) See Act of Apr. 6, 1784, 1784 N.Y. LAWS ch. 18, at 613; RONALD E. SEAVOY, THE ORIGINS OF THE AMERICAN BUSINESS CORPORATION, 1784-1855, at 6 (1982); Liam Seamus O'Melinn, Neither Contract nor Concession: The Public Personality of the Corporation, 74 GEO. WASH. L. REV. 201, 216-20 (2006); Kellen Funk, This Stone Which I Erect Shall Be a House of God: Disestablishment and Religious Corporations in New York, 1784-1854, at 4, 8-10 (June 15, 2013) (unpublished manuscript) (on file with author).

(84) Chief Justice John Marshall wrote that a corporation is "invisible, intangible, and existing only in contemplation of law." Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 636 (1819). Yet the corporation and its relationship to public, as well as private, religious life was ubiquitous and influenced government in visible and tangible ways.

(85) HURST, supra note 43, at 11-12.

(86) Act of 1796, 2 N.C. PUB. ACTS ch. 11, at 93 (Martin 1804).

(87) Id. [section] 1, at 93.

(88) Id. [section] 2, at 93.

(89) Trs. of the Quaker Soc'y of Contentnea v. Dickenson, 12 N.C. (1 Dev.) 189 (1827). The case actually began at least five years earlier. John Spencer Bassett, Slavery in the State of North Carolina, in 17 ECONOMIC HISTORY--MARYLAND AND THE SOUTH 317, 384 n.1 (Herbert B. Adams ed., Baltimore, Johns Hopkins Press 1899).

(90) Dickenson, 12 N.C. (1 Dev.) at 190.

(91) Id. at 200.

(92) Huckaby v. Jones, 9 N.C. (2 Hawks) 120, 120-21 (1822).

(93) Id.

(94) Id.; see also Thompson v. Newlin, 38 N.C. 388 (3 Ired. Eq.) 338, 340-41 (1844) (voiding as against public policy deeds and wills which attempted to emancipate slaves); Stevens v. Ely, 16 N.C. (1 Dev. Eq.) 493,493-94, 497-98 (1830) (voiding a contract to sell slaves into partial slavery); Haywood v. Cravens Ex'rs, 4 N.C. (Car. L. Pep.) 360, 367 (1816) (voiding a bequest that contemplated emancipation); THOMAS D. MORRIS, SOUTHERN SLAVERY AND THE LAW, 1619-1860, at 400-02 (1996) (describing North Carolina courts' hostility to "quasi-emancipation").

(95) Dickenson, 12 N.C. (1 Dev.) at 190-91, 203.


(97) Id.

(98) 12 N.C. (1 Dev.) at 206-07 (Hall, J., dissenting).

(99) HOWE, supra note 43, at 180-82.


(101) Id. art. XXXIV; see also Beatty v. Kurtz, 27 U.S. (2 Pet.) 566, 583 (1829) (noting Maryland's two-acre maximum). The amount was raised to five acres in the 1867 Maryland constitution's Declaration of Rights, eventually vacated in 1948, and repealed entirely in 1977. MD. DECLARATION OF RIGHTS of 1867, art. XXXVIII (repealed 1977). Several states also imposed limits on the percentage of a decedent's estate that could be left to a religious institution and the length of time that must have elapsed between the execution of a will and the time of death. See, e.g., Act of Mar. 22, 1858, [section] 6, IOWA REV. STAT. [section] t198, at 203 (1860) (setting a maximum contribution of twenty-five percent of the estate for decedents leaving a surviving wife, child, or parent); Act of April 26, 1855, 1855 PA. LAWS ch. 347, [section] 11, at 332 (requiring completion of will or deed at least one month before death). Such statutes generally were defended as means to protect families against "improvident" or "enfeebled" testators. Such bequests were not automatically void, but could be challenged at the election of heirs or next of kin. Kristine S. Knaplund, Charity for the "Death Tax": The Impact of Legislation on Charitable Bequests, 45 GONZ. L. REV. 713, 726-28 (2010). Yet the message, especially when paired with widespread property restrictions, was one grounded in suspicion of the actions and motives of churchmen.

Scholars specializing in trust and estate law frequently and mistakenly assume that the category "mortmain" is composed entirely of such testamentary restrictions. See, e.g., John R. Cunningham, Mortmain Statutes: The Dead Hand Still Survives, 27 IDAHO L. REV. 49, 49 (1990) ("Mortmain statutes ... limit testamentary transfers to religious and charitable organizations."); Shirley Norwood Jones, The Demise of Mortmain in the United States, 12 MISS. C. L. REV. 407, 408 (1992).


(103) Grove, 33 Md. at 454-55.


(105) Grove, 33 Md. at 452-53.

(106) Id.

(107) Id. at 454.

(108) Id. at 456-58.

(109) Id.

(110) E.g., Rogers v. Sisters of Charity of St. Joseph, 97 Md. 550, 554 (1903) (holding that the establishment of a trust in a religious society to benefit an orphan asylum, where no trustee duties were specified, actually vested fee simple in the asylum).

(111) Act of March 16, 1855, [section] 2, 1855 ME. ACTS 196, 197.

(112) 30 Me. 231, 235 (1849).

(113) Act of Feb. 13, 1855, [section] 19, 1855 MICH. LAWS 313, 317.

(114) Act of Dec. 28, 1843, [section][section] 1-2, 1843 GA. ACTS 108, 208.

(115) For a useful summary of regulations imposed by New York State on specific denominations, see TYLER, supra note 54, at 59-90. For current regulation by denomination, see N.Y. RELIG. CORP. LAW [section][section] 40-437 (McKinney 2990 & Supp. 2012).

(116) See, e.g., De Ruyter v. St. Peter's Church, 3 N.Y. 238, 239, 243 (1850) (holding that vice-chancellor's approval of a mortgage meant that the church was liable for the debt); Freligh v. Platt, 5 Cow. 494, 496 (N.Y. Sup. Ct. 1826) (holding that a sale of pews was not a sale of real estate and did not require court approval); TYLER, supra note 54, at 59-140 (detailing New York's religious laws). By the mid-twentieth century, specific statutory language existed for thirty-five separate denominations. Kauper & Ellis, supra note 31, at 1534.

(117) See infra notes 125-132 and accompanying text.

(118) Act of Feb. 6, 1835, [section] 1,1835 ILL. LAWS 147, 147.

(119) Id.

(120) Dallin H. Oaks & Joseph I. Bentley, Joseph Smith and Legal Process: In the Wake of the Steamboat Nauvoo, 1976 BYU L. REV. 735, 745-46.

(121) Id. at 749.


(123) See FAWN MCKAY BRODIE, NO MAN KNOWS MY HISTORY: THE LIFE OF JOSEPH SMITH 266 (2d ed. 1971) (listing Smith's debts upon his declaration of bankruptcy in 1842); RICHARD LYMAN BUSHMAN, JOSEPH SMITH: ROUGH STONE ROLLING 433-34 (2005). See generally ROBERT BRUCE FLANDERS, NAUVOO: KINGDOM ON THE MISSISSIPPI 168-71 (1965); M. Hamlin Cannon, Bankruptcy Proceedings against Joseph Smith in Illinois, MPAC. HIST. REV. 425 (1945) (collecting correspondence detailing Smith's bankruptcy proceedings).

(124) See generally JOHN C. BENNETT, THE HISTORY OF THE SAINTS: OR, AN EXPOSE OF JOE SMITH AND MORMONISM 96-98 (Univ. of Illinois Press 3d ed. 2000) (1842) (providing additional background on the bankruptcy litigation).

(125) Oaks & Bentley, supra note 120, at 773-78. By 1845, the state had increased the amount of property a church could hold to ten acres. Act of Mar. 3, 1845, [section] 44, 1844-1845 ILL. REV. STAT. 111, 120.

(126) Id.

(127) St. Peter's Roman Catholic Congregation v. Germain, 104 Ill. 440, 443 (1882).

(128) Id.

(129) Id. at 447.

(130) Id. at 446.

(131) See, e.g., Leazure v. Hillegas, 7 Serg. & Rawle 313, 318-22 (Pa. 1821). For analogous reasoning regarding secular organizations, see generally Arthur M. Alger, Consequences of Illegal or Ultra Vires Acquisition of Real Estate by a Corporation, 8 HARV. L. REV. 15 (1894).

(132) Germain, 104 Ill. at 448 (Craig, J., dissenting); see also De Camp v. Dobbins, 31 N.J. Eq. 671, 688-96 (1879) (holding religious society that already held maximum amount of property allowed by statute could not receive a charitable bequest).

(133) See A.H. Oosterhoff, The Law of Mortmain: An Historical and Comparative Review, 27 U. TORONTO L.J. 257, 257 (1977).

(134) See Scott v. Thompson, 21 Iowa 599 (1866) (requiring a "fraudulent" prophet to return property donated by followers, because he had abused their trust); Gass & Bonta v. Wilhite, 32 Ky. (2 Dana) 170 (1834) (upholding Shaker contract against seceding members, because they had full notice of terms and chose to join the religious society); CAROL WEISBROD, THE BOUNDARIES OF UTOPIA 79, 115-61 (1980) (noting that state, not divine, law controlled in antebellum America); Judicial Decision--On Community, DAILY NAT'L INTELLIGENCER, Dec. 19, 1827, at 3 (reporting on the 1820 New Hampshire Superior Court case, Heath v. Draper, which rejected the claim of a former member of the Society of Shakers, on the ground that standard law of contract, not evaluation of the truth of the underlying religion, governed the dispute).

(135) See Maier, supra note 31, at 84; see also HURST, supra note 43, at 11.

(136) See, e.g., ALA. CODE [section] 1257, at 274 (Ormond, Bagby & Goldthwaite i852) (allowing three to nine trustees); Act of Dec. 7, 1837, ARK. DIGEST OF STAT. ch. 144, [section] 1, at 899 (Gould 1858) (unspecified number of trustees); Act of Apr. 22, 1850, CAL. DIGEST OF LAWS ch. 6, [section] 175, at 56 (Wood 1857) (three to fifteen trustees); CONN. GEN. STAT. [section] 206, at 133 (1866) (at least three trustees); DEL. REV. STAT. ch. 39, [section][section] 1-2, at 105 (1852) (three to twelve trustees); 1846-1847 FLA. ACTS ch. 84, [section] 38, at 36 (up to ten trustees); Act of Dec. 3, 1805, GA. DIGEST OF LAWS 899 (Cobb 1851) (unspecified number of trustees); Act of 1845, [section] 44, ILL. STAT. 979, 980 (Treat, Scates & Blackwell 1858) (up to ten trustees); Act of June 17, 1852, 1 IND. REV. STAT. ch. 101, [section][section] 1, 9, at 459-60 (1852) (three to five trustees); Act of Mar. 22, 1858, [section] 6, IOWA REV. STAT. [section] 1195, at 202 (1860) (unspecified number of trustees); Act of Feb. 1, 1814, 1813-1814 KY. ACTS ch. 164, at 211-12 ("not exceeding five" trustees); 1860 MD. CODE art. 26, [section] 88, at 165 (five to thirteen trustees); 1 MICH. COMP. LAWS ch. 68, [section] 2, at 660 (Cooley 1857) (three to nine trustees); MINN. PUB. STAT. ch. 17, [section] 15, at 279 (Sherburne & Hollinshead) (three to nine trustees); Act of Mar. 16, 1786, [section] 1, 1785-1786 N.J. ACTS ch. 129, [section] 1, at 255-56 (up to seven trustees); 1854 N.C. REV. CODE ch. 97, [section] 3, at 500 (Moore & Biggs 1855) (a "suitable number" of trustees); 1 OHIO REV. STAT. ch. 29, [section] 83, at 305-06 (Swan 1860) (at least three trustees); Act of Oct. 24, 1864, [section] 2, OR. GEN. LAWS ch. 4, at 633 (Deady 1866) (at least three trustees); PA. DIGEST OF LAWS 866 (Purdon & Brightly 1862) (unspecified number of trustees); 1857-1858 TENN. CODE [section] 1467, at 318 (Meigs & Cooper 1858) (three to nine trustees); TEX. DIGEST OF LAWS art. 2063, at 443 (Oldham & White 1859) (three to nine trustees).

(137) See, e.g., Act of Apr. 6, 1784, 1784 N.Y. LAWS ch. 18, at 614.

(138) See supra note 136.

(139) See Act of Apr. 6, 1784, 1784 N.Y. LAWS ch. 18, at 614-15; Trs. of Ministerial Fund and School Fund in Levant v. Parks, 10 Me. 441 (1833) (holding that an action could be brought by the trustees of a corporation as a group).

(140) ZOLLMAN, supra note 21, at 49-53 (discussing the role of trustees empowered to control property); Kauper & Ellis, supra note 31, at 1509-12.

(141) KAN. CONST. art. XII, [section] 3 (1859) (repealed 1974); see also KAN. GEN. LAWS ch. 44, [section] 38 (1862) (requiring a minimum of three trustees). Some lay trustee control, even among Catholics, is still present in America. See, e.g., Krauze v. Polish Roman Catholic St. Stanislaus Parish, No. 0822-CC07847, at 33 (Mo. Cir. Ct. 2012), available at (holding in favor of the independent operation of a parish); Tim Townsend, St. Louis Archdiocese and St. Stanislaus Reach Settlement that Makes Church Independent, ST. LOUIS POST-DISPATCH (Feb. 14, 2013), st-stanislaus-reach-settlement-that-makes/article-c876ca45-4999-5a2b-8bsb-o3a7a48ab145.html (describing the St. Louis Archdiocese's settlement with the local parish).

(142) See Act of Dec. 7, 1837, [section] l, ARK. DIGEST OF STAT. 899, 899 (Gould 1858) (enabling trustees to hold and manage lands for religious societies); VA. CODE tit. 22, ch. 77, [section][section] 8-9, 362-63 (1849) (enabling Circuit Court-appointed trustees to manage religious congregations' property). For the laws of Rhode Island and West Virginia, see TYLER, supra note 54, at 344-49.

(143) Several of early America's powerful national religious leaders appear in this study. See, for example, infra notes 157, 175 & 192, for references to, respectively, Charles Grandison Finney, Richard Allen, and John England, and supra notes 119-126, for Joseph Smith. There are many hundreds of others whose inspiration changed the lives of those around them. See generally WHITNEY R. CROSS, THE BURNED-OVER DISTRICT: THE SOCIAL AND INTELLECTUAL HISTORY OF ENTHUSIASTIC RELIGION IN WESTERN NEW YORK, 1800-1850 (Harper & Row 1965) (1950).

(144) For an exploration of religious markets and marketing in the early national period, see R. LAURENCE MOORE, SELLING GOD: AMERICAN RELIGION IN THE MARKETPLACE OF CULTURE 12-65 (1994).

(145) See generally Kenneth R. Bowling, "A Tub to the Whale": The Founding Fathers and Adoption of the Federal Bill of Rights, 8 J. EARLY REPUBLIC 223 (1988) (detailing the highly political history of the passage of the Bill of Rights).

(146) 1 THE AUTOBIOGRAPHY OF LYMAN BEECHER 252 (Barbara M. Cross ed., 1961) (1864).



(149) See id. at 2, 11, 106, 130 (showing that, by cultivating mistrust and fear of chaos, religious leaders taught Americans to value faith over reason).

(150) Id. at 11.

(151) HATCH, supra note 147, at 226.

(152) See THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS: THE POLITICAL ORIGINS OF SOCIAL POLICY IN THE UNITED STATES 525-40 (1992) (arguing that protective social legislation in the late nineteenth century establishes the value of "bringing the state back in" as a subject of historical inquiry).

(153) On the early national and antebellum eras as blending spiritual with political focus on individual perfectibility and abolitionism, see generally ROBERT H. ABZUG, COSMOS CRUMBLING: AMERICAN REFORM AND THE RELIGIOUS IMAGINATION (1994); RICHARD J. CARWARDINE, EVANGELICALS AND POLITICS IN ANTEBELLUM AMERICA 199-234 (1993).

(154) The field is ripe for additional research, which will provide vital insights into the relationship of law and religion in this formative era of American law.

(155) See generally CROSS, supra note 143; HATCH, supra note 147, at 162-89; PORTERFIELD, supra note 148, at 78-112.


(157) See CHARLES E. HAMBRICK-STOWE, CHARLES G. FINNEY AND THE SPIRIT OF AMERICAN EVANGELICALISM 92-93 (1996) (noting that, for Finney, individual capacity meant salvation was a moral and spiritual choice); see also CHARLES G. FINNEY: AN AUTOBIOGRAPHY 304 (Fleming H. Revell Co. 1908) (1876); Elizabeth B. Clark, Anticlericalism and Antistatism 4-5 (n.d.) (unpublished manuscript) (on file with author).


(159) Clark, supra note 157, at 7.

(160) 1 SAMUEL G. GOODRICH, RECOLLECTIONS OF A LIFETIME 196 (N.Y., Miller, Orton & Co. 1856).

(161) LORENZO DOW, HISTORY OF COSMOPOLITE; OR JOURNAL OF LORENZO DOW 176, 202 (Pittsburgh, Israel Rees 1849).

(162) CROSS, supra note 143, at 3-4; Sidney E. Mead, American Protestantism During the Revolutionary Epoch, in RELIGION IN AMERICAN HISTORY: INTERPRETIVE ESSAYS 166-67 (John M. Mulder & John F. Wilson eds., 1978).

(163) See infra text accompanying notes 191-241.

(164) BERIAH GREEN, FOUR SERMONS, PREACHED IN THE CHAPEL OF THE WESTERN RESERVE COLLEGE 41 (Cleveland, Office of the Herald 1833) (emphasis omitted).

(165) Some observers have made similar points. See, e.g., Rhys Isaac, "The Rage of Malice of the Old Serpent Devil": The Dissenters and the Making and Remaking of the Virginia Statute for Religious Freedom, in THE VIRGINIA STATUTE FOR RELIGIOUS FREEDOM: ITS EVOLUTION AND CONSEQUENCES IN AMERICAN HISTORY 139, 163 (Merrill D. Peterson & Robert C. Vaughan eds., 1988).

(166) Letter from J.A. Thome to Theodore Dwight Weld (Feb. 7, 1839), in 2 LETTERS OF THEODORE DWIGHT WELD, ANGELINA GRIMKE WELD AND SARAH GRIMKE, 1822-1844, at 750, 751 (Gilbert H. Barnes & Dwight L. Dumond eds., De Capo Press 1970) (1934). See generally GEORGE BOURNE, THE BOOK AND SLAVERY IRRECONCILABLE (Phila., J.M. Sanderson & Co. 1816); David Brion Davis, The Emergence of Immediatism in British and American Antislavery Thought, 49 MISS. VALLEY HIST. REV. 209 (1962); Anne C. Loveland, Evangelicalism and "Immediate Emancipation" in American Antislavery Thought, 32 J.S. HIST. 172 (1966).

(167) See, e.g., DOUGLAS R. EGERTON, HE SHALL GO OUT FREE: THE LIVES OF DENMARK VESEY 154-74 (Rowman & Littlefield rev. ed. 2004) (1999) (discussing the response to Denmark Vesey's planned slave rebellion in Charleston, South Carolina, in 1822). For a detailed account of the Vesey rebellion, see Thomas Wentworth Higginson, Denmark Vesey, 7 ATLANTIC MONTHLY 728 (1861), available at White authorities destroyed the African Methodist Episcopal Church there when they discovered the plot, convinced that the church had been at the center of the rebellion.

(168) See BUCKLEY, supra note 48, at 7-54, 141-43; PORTERFIELD, supra note 148, at 172-75.


(170) Richard O. Curry & Lawrence B. Goodheart, Individualism in Tram-National Context, in AMERICAN CHAMELEON: INDIVIDUALISM IN TRANS-NATIONAL CONTEXT 1, 8 (Richard O. Curry & Lawrence B. Goodheart eds., 1991) (citing Lewis Perry, Versions of Anarchism in the Antislavery Movement, 20 AM. Q. 768, 771 (1968)).

(171) See generally BUCKLEY, supra note 48, at 116-43.

(172) See, for example, the series of cases that surrounded the formation and early years of separate "African" churches, such as the churches known as Mother Bethel and St. Thomas's African Episcopal Church. Commonwealth v. Cain, 5 Serg. & Rawle 51o (Pa. 1820) (holding trustees could alter articles of incorporation to exclude those in arrears on pew rents from voting in trustee elections); Green v. African Methodist Episcopal Soc'y, 1 Serg. & Rawle 254 (Pa. 1815) (holding disaffected member could not be ejected without majority vote of trustees).

(173) WILLIAM GOODELL, COME-OUTERISM: THE DUTY OF SECESSION FROM A CORRUPT CHURCH 36 (N.Y., Am. Anti-Slavery Soc'y 1845); RONALD G. WALTERS, THE ANTISLAVERY APPEAL: AMERICAN ABOLITIONISM AFTER 1830, at 48-49 (1976). See generally John R. McKivigan, The Antislavery "Comeouter" Sects: A Neglected Dimension of the Abolitionist Movement, 26 CIV. WAR HIST. 142 (1980).


(175) For additional information on this controversy, see Sarah Barringer Gordon, The African Supplement: Religion, Race, and Corporate Law in Early National America (2013) (unpublished manuscript) (on file with author). See also generally CAROL V.R. GEORGE, SEGREGATED SABBATHS: RICHARD ALLEN AND THE EMERGENCE OF INDEPENDENT BLACK CHURCHES, 1760-1840 (1973); GARY B. NASH, FORGING FREEDOM: THE FORMATION OF PHILADELPHIA'S BLACK COMMUNITY, 1720-1840, at 227-33 (1988); RICHARD S. NEWMAN, FREEDOM'S PROPHET: BISHOP RICHARD ALLEN, THE AME CHURCH, AND THE BLACK FOUNDING FATHERS (2008); Will B. Gravely, African Methodisms and the Rise of Black Denominationalism, in RETHINKING METHODIST HISTORY: A BICENTENNIAL HISTORICAL CONSULTATION 111 (Russell E. Richey & Kenneth E. Rowe eds., 1985).

(176) See 2 WILLIAM STEVENS PERRY, THE HISTORY OF THE AMERICAN EPISCOPAL CHURCH: 1587-1883, at 35-48 (Bos., James R. Osgood & Co. 1885); Norman W. Spellmann, The Formation of the Methodist Episcopal Church, in 1 THE HISTORY OF AMERICAN METHODISM 185 (Emory Stevens Bucke ed., 1964).




(180) DEE E. ANDREWS, THE METHODISTS AND REVOLUTIONARY AMERICA, 1760-1800: THE SHAPING OF AN EVANGELICAL CULTURE 58-59 (2000); see also Keith Mason, Localism, Evangelicalism, and Loyalism: The Sources of Discontent in the Revolutionary Chesapeake, 56 J.S. HIST. 23, 40 (1990) ("[M]any Eastern Shore leaders [during the Revolutionary era], alarmed by this gulf, came to believe that Methodism was largely responsible for the region's wartime disaffection.").

(181) They stressed their patriotic roots and the fact that their fathers and uncles fought Indians and hunted; one minister even claimed his father had worked alongside Daniel Boone. See JAMES B. FINLEY, AUTOBIOGRAPHY OF REV. JAMES B. FINLEY; OR, PIONEER LIFE IN THE WEST 20-25 (Cincinnati, Methodist Book Concern 1853).

(182) See MECHAL SOBEL, THE WORLD THEY MADE TOGETHER: BLACK AND WHITE VALUES IN EIGHTEENTH-CENTURY VIRGINIA 207-12 0987); Jewel L. Spangler, Salvation Was Not Liberty: Baptists and Slavery in Revolutionary Virginia, 13 AM. BAPTIST Q. 221, 229 (1994).

(183) HEYRMAN, supra note 179, at 225.

(184) ALBERT J. RABOTEAU, SLAVE RELIGION: THE "INVISIBLE INSTITUTION" IN THE ANTEBELLUM SOUTH 204-05 (1978). See also generally EGERTON, supra note 167, at 101-25.

(185) SYLVIA R. FREY & BETTY WOOD, COME SHOUTING TO ZION: AFRICAN AMERICAN PROTESTANTISM IN THE AMERICAN SOUTH AND BRITISH CARIBBEAN TO 1830, at 100-58 (1998). Georgia's First African Baptist Church, founded in Savannah in 1787, may have been the first independent black church. See id. See also generally Julia Floyd Smith, Marching to Zion: The Religion of Black Baptists in Coastal Georgia Prior to 1865, 6 GA. BAPTIST HIST. SOC'Y 47 (1978).

(186) RABOTEAU, supra note 184, at 163, 204-05.

(187) See EDWARD J. BLUM, W.E.B. DU BOIS: AMERICAN PROPHET 100-01 (2007) (drawing connections between religion and slave insurrections, including both Vesey's and Nat Turner's); see also RABOTEAU, supra note 184, at 205. See generally DU BOIS, supra note 18.

(188) MORRIS, supra note 94, at 346-47; RABOTEAU, supra note 184, at 146-47.

(189) HEYRMAN, supra note 179, at 234 (citation omitted); see also CHARLES D. MALLARY, MEMOIRS OF ELDER EDMUND BOTSFORD 103 (Charleston, W. Riley 1832) (referring to church members as "spiritual warriors").

(190) HEYRMAN, supra note 179, at 245.


(192) Archbishop Ambrose Marechal of Baltimore and other French American Bishops, as well as Irish immigrant John England, Bishop of Charleston, all favored some form of democratic governance in the early nineteenth century. PATRICK W. CAREY, CATHOLICS IN AMERICA: A HISTORY 28 (2004); 1 PETER GUILDAY, THE LIFE AND TIMES OF JOHN ENGLAND, FIRST BISHOP OF CHARLESTON (1786-1842), at 362 (1927).


(194) See Alfonso Comeau, A Study of the Trustee Problem in the St. Louis Cathedral Church of New Orleans, Louisiana, 1842-1844, 31 LA. HIST. Q. 897, 923-40 (1948) (detailing a series of articles on schism printed by the Catholic clergy in their periodical, Le Propagateur Catholique). See generally Peter Guilday, Trusteeism, in 18 U.S. CATHOLIC HIST. SOC'Y, HISTORICAL RECORDS AND STUDIES 7 (Thomas F. Meehan, Percy J. King & Henry Ridder eds., 1928).

(195) PETER GUILDAY, THE CATHOLIC CHURCH IN VIRGINIA (1815-1822), at 6-7 (1924); see also id. at 7 (noting the laymen sought to relieve "the clergy ... of all the worries and anxieties attendant upon the temporal management of church affairs," which led them to exclude the clergy "from all control").


(197) WILLIAM WILSON MANROSS, THE EPISCOPAL CHURCH IN THE UNITED STATES, 1800-1840: A STUDY IN CHURCH LIFE 41 (1938) (quoting Episcopal Church founder William Smith).


(199) CAREY, supra note 193, at 107-08. See generally Guilday, supra note 194.

(200) DIGNAN, supra note 198, at 97-99.

(201) Id. at 99.

(202) CAREY, supra note 193, at 113-14.

(203) Id. at 114.

(204) DIGNAN, supra note 198, at 99-100; Guilday, supra note 194, at 53-73.

(205) CAREY, supra note 193, at lt4.

(206) Id.

(207) Id. at 114-15 (quoting William Taylor) (citation omitted).

(208) Letter from Pope Pius VII to Archbishop Marechal (Aug. 24, 1822), in 25 RECORDS OF THE AMERICAN CATHOLIC HISTORICAL SOCIETY OF PHILADELPHIA 325, 325 (1914) [hereinafter Letter from Pope Pius VII]; see also Margaret Wilson Gillikin, Competing Loyalties: Nationality, Church Governance, and the Development of an American Catholic Identity, 11 EARLY AM. STUD. 146, 153 (2013).

(209) Letter from Pope Pius VII, supra note 208, at 325-30.

(210) In re St. Mary's Church, 7 Serg. & Rawle 517, 555 (Pa. 1822) (opinion of Duncan, J.).

(211) See generally id. at 517-66.

(212) See Form of Excommunication Against William Hogan, Read in St. Augustine's Church, Philadelphia--May 27, 1821, reprinted in FRANCIS E. TOURSCHER, THE HOGAN SCHISM AND TRUSTEE TROUBLES IN ST. MARY'S CHURCH, PHILADELPHIA, 1820-1829, at 204-06 (1930).

(213) Id.

(214) THE TRIAL OF THE REV. WILLIAM HOGAN, FOR AN ASSAULT AND BATTERY ON MARY CONNELL (Phila., R. Desilver 1822); Jennifer Schaaf, "With a Pure Intention of Pleasing and Honouring God": How the Philadelphia Laity Created American Catholicism, 1785-1850, at 118-35 (2013) (unpublished Ph.D. dissertation, University of Pennsylvania) (on file with author).

(215) For one recent controversy, see supra note 141.

(216) In re St. Mary's Church, 7 Serg. & Rawle at 566.

(217) Id. at 528-40 (opinion of Tilghman, C.J.), 553-66 (opinion of Duncan, J.).

(218) Id. at 535 (opinion of Tilghman, C.J.) (citing cases involving "the rights of the Presbyterian clergy").

(219) See, e.g., Riddle v. Stevens, 2 Serg. & Rawle 537, 543 (Pa. 1816) (opinion of Tilghman, C.J.) ("[I]t was not in the power of the [lay leaders] to remove the [pastor]. The Presbytery alone could do it, with a right of appeal, first to the Synod, and in the last resort to the General Assembly."); M'Millan v. Birch, 1 Binn. 178, 187-88 (Pa. 1806) (opinion of Tilghman, C.J.) (holding that internal church discipline proceedings between two Presbyterian clergymen would not give rise to a claim for slander in secular court because discipline of clerics within the denomination is essential to spiritual, not temporal, governance).

(220) In re St. Mary's Church, 7 Serg. & Rawle at 535-36 (opinion of Tilghman, C.J.).

(221) Id. at 539-40.

(222) TOURSCHER, supra note 212, at 83-84; Schaaf, supra note 214, at ix-x.

(223) See generally TOURSCHER, supra note 212, at 162-70.


(225) CAREY, supra note 193, at 107-32.

(226) Michael W. McConnell, Schism, Plague, and Last Rites in the French Quarter: The Strange Story Behind the Supreme Court's First Free Exercise Case, in FIRST AMENDMENT STORIES 39, 48-49 (Richard W. Garnett & Andrew Koppelman eds., 2012). For additional background, see ROGER BAUDIER, THE CATHOLIC CHURCH IN LOUISIANA 269 (reprint 1972) (1939), and Comeau, supra note 194, at 903-06.

(227) Wardens of the Church of St. Louis v. Blanc, 8 Rob. 51, 91 (La. 1844).

(228) Permoli v. Municipality No. 1 of New Orleans, 44 U.S. (3 How.) 589, 609 (1845).

(229) McConnell, supra note 226, at 43-46, 57-59.

(230) The success of the bishops' strategy was partial at best, as the experience of St. Augustine, Florida, illustrates. In 1830, Catholic lay trustees refused to "receive" the priest sent by the Church's Administrator General of Florida. In response to a suit brought by the aggrieved priest, the federal court in Florida held that the "right of presentation vested in the congregation," and upheld the trustees. 3 JOHN GILMARY SHEA, HISTORY OF THE CATHOLIC CHURCH IN THE UNITED STATES 698 (N.Y., John G. Shea 1890). When the Bishop of the Vicariate Apostolic of Alabama and the Floridas traveled to St. Augustine to "heal the schism," the trustees refused his overtures. DIGNAN, supra note 198, at 157.

(231) Maryland, Illinois, and California each passed such legislation. Act of Apr. 22, 1850, CAL. DIGEST OF LAWS ch. 6, [section] 184, at 57 (Wood 1857); Act of Feb. 24, 1845, [section] 1, ILL. STAT. 983, 984 (Treat, Scares & Blackwell 1858); Act of Mar. 23, 1833, [section] 1, 1832-1833 MD. LAWS ch. 308.

(232) Gable v. Miller, 10 Paige Ch. 627, 645-49 (N.Y. Ch. 1844), rev'd, 2 Denio 492 (N.Y. 1845).

(233) Robertson v. Bullions, 11 N.Y. 243, 264-65 (1854) (opinion of Selden, J.); see also, e.g., Petty v. Tooker, 21 N.Y. 267 (1860) (holding that a majority of trustees could call a meeting of the congregation, and that a majority of the congregation could then validly decide to affiliate with another denomination).

(234) Act of Apr. 9, 1855, [section] 1, 1855 N.Y. LAWS 338, 338.

(235) MICH. COMP. LAWS ch. 68, [section] 22 (1855); Act of Apr. 14, 1857, 1857 OHIO LAWS 110 (repealed 1858); Act of Apr. 26, 1855, PA. DIGEST OF LAWS 865 (Purdon & Brightly 1862).

(236) For example, Massachusetts and Missouri debated legislation prohibiting corporations sole. See DIGNAN, supra note 198, at 200-201

(237) CAREY, supra note 192, at 29.

(238) Id. at 29-31, 49-50.

(239) Id. at 27-29.

(240) See GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789-1815, at 589-91 (2009) (noting that many elite American thinkers at the time "privately scorned Christianity [but] accommodated their outward behavior to the religiosity of the general populace").

(241) See, e.g., WALTERS, supra note 173, at 52 (evaluating 1830s-era antislavery as a means of revolt against clerical authority and sectarian narrowness).

(242) See Vidal v. Girard's Ex'rs, 43 U.S. (2 How.) 127, 197-201 (1844) (upholding Stephen Girard's bequest to Philadelphia to establish a college that excluded "all ecclesiastics, missionaries, and ministers of any sect" from any position--"or even [from] visiting" the college--as well as "all instruction in the Christian religion").

(243) See id. at 198.

(244) See 1 BEECHER, supra note 146, at 252.

(245) MICHAEL KLEPPER & ROBERT GUNTHER, THE WEALTHY 100: FROM BENJAMIN FRANKLIN TO BILL GATES--A RANKING OF THE RICHEST AMERICANS, PAST AND PRESENT xi (1996) (ranking Stephen Girard as the fourth wealthiest American, relative to the U.S. Gross National Product at the time of his death).

(246) See Vidal, 43 U.S. (2 How.) at 183-86.

(247) Id. at 129.

(248) Id. at 133.

(249) Id. at 186.

(250) See id. at 175 ("The reasons which the testator gives [in support of the conditions on his bequest] are objectionable and derogatory to Christianity.... ").

(251) 17 U.S. (4 Wheat.) 518 (1819). For Webster's role in the Dartmouth College case, see Gordon, supra note 14.

(252) Vidal, 43 U.S. (2 How.) at 174. Webster's argument is also discussed at length in 2 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 398-407 (1922).

After attending the argument, one congressman remarked, "There is no use for ministers now. Daniel Webster is down in the Supreme Court room eclipsing them all by a defence of the Christian religion. Hereafter we are to have the gospel according to Webster." ROBERT V. REMINI, DANIEL WEBSTER: THE MAN AND HIS TIME 589 (1997) (quoting Rep. John Wentworth of Illinois reporting the words of an unnamed congressman).

(253) Justice Joseph Story wrote to his wife on the sixth day of arguments in the case that "the Court-room was crowded, almost to suffocation, with ladies and gentlemen to hear [Webster]. Even the space behind the Judges, close home to their chairs, presented a dense mass of listeners." Letter from Joseph Story to Sarah Story (Feb. 7, 1844), in 2 LIFE AND LETTERS OF JOSEPH STORY 467, 468 (William W. Story ed., Bos., Charles C. Little & James Brown 1851).

(254) Vidal, 43 U.S. (2 How.) at 154.

(255) Id. at 200.

(256) See id. at 133 ("[A]ll the instructors and teachers in the college shall take pains to instil [sic] into the minds of the scholars the purest principles of morality.... ").

(257) Id. at 199-200.

(258) James Kent, author of a leading legal treatise of the day, Commentaries on American Law, wrote to Story to praise the reasoning and result of the Girard will case. Gordon, supra note 12, at 704 & 717 n.45 (citing JAMES MCCLELLAN, JOSEPH STORY AND THE AMERICAN CONSTITUTION: A STUDY IN POLITICAL AND LEGAL THOUGHT 371 (1971)).



(261) In Massachusetts alone, more than eighty cases featured Unitarian majorities against Trinitarian Congregationalist minorities. WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW: THE IMPACT OF LEGAL CHANGE ON MASSACHUSETTS SOCIETY, 1760-1830, at 127-28 (1975); The Exiled Churches of Massachusetts, 5 CONGREGATIONAL Q. 216, 233 (1863). The "Unitarian Controversy" revealed how deeply democratic inclinations could contradict doctrinal orthodoxy, yet still be endorsed as consistent with establishment, thus undermining public support, even in the Bay State, for a divided religious polity. See LEONARD W. LEVY, THE LAW OF THE COMMONWEALTH AND CHIEF JUSTICE SHAW 29-42 (1957) (discussing the role of the courts in the controversies, and their support for the more liberal Unitarians).

(262) WALTERS, supra note 173, at 47-57; see also Loveland, supra note 166, at 183.

(263) Catherine Glennan Borchert, Exscinded!: The Schism of 1837 in the Presbyterian Church in the United States of America and the Role of Slavery 22 n.18 (May 2009) (unpublished Ph.D dissertation, Case Western Reserve University), available at (click "View" or "Download").

(264) See generally id. at 185-290 (providing a detailed account of the 1837 schism).

(265) CARWARDINE, supra note 153, at 158-59, 166-67; GEORGE M. MARSDEN, THE EVANGELICAL MIND AND THE NEW SCHOOL PRESBYTERIAN EXPERIENCE: A CASE STUDY OF THOUGHT AND THEOLOGY IN NINETEENTH-CENTURY AMERICA 97 (Wipf & Stock Publishers 2003) (1970); Borchert, supra note 263, at 321-24, 328-29, 339-43.

(266) See C. Bruce Staiger, Abolitionism and the Presbyterian Schism of 1837-1838, 36 MISS. VALLEY HIST. REV. 391, 393 (1949) ("[T]he essential difference between the two schools lay in their conceptions of man's nature. Was man by nature evil and 'born in sin,' or basically good and free of sin at birth? Was his will in bondage, and salvation a matter only for the elect, or did he possess a free will through which every man might win his own salvation?").

(267) Presbyterian Congregation v. Johnston, 1 Watts & Serg. 9, 38-39 (Pa. 1841); see also A HISTORY OF THE DIVISION OF THE PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA BY A COMMITTEE OF THE SYNOD OF NEW YORK AND NEW JERSEY 202-04 (N.Y., M.W. Dodd 1852).

(268) CARWARDINE, supra note 153, at 167; MARSDEN, supra note 265, at 128-41. For Presbyterians the most painful split came with the war itself. See Watson v. Jones, 80 U.S. (13 Wall.) 679, 684-86 (1871); ROBERT ELLIS THOMPSON, A HISTORY OF THE PRESBYTERIAN CHURCHES IN THE UNITED STATES 160 (N.Y., The Christian Literature Co. 1895).

(269) WIGGER, supra note 178, at 3-7.


(271) McKivigan, supra note 173, at 146-47; see also LUCIUS C. MATLACK, THE LIFE OF REV. ORANGE SCOTT 213 (N.Y., C. Prindle & L.C. Matlack 1847) (reprinting Scott's May 1843 speech defending secession at the General Convention in Utica, New York); Chris Padgett, Hearing the Antislavery Rank-and-File: The Wesleyan Methodist Schism of 1843, 12 J. EARLY REPUBLIC 63, 66 n.4 0992) (estimating 20,000 Wesleyan Methodists by 1849).

(272) 3 MINUTES OF THE ANNUAL CONFERENCES OF THE METHODIST EPISCOPAL CHURCH, FOR THE YEARS 1839-1845, at 477 (N.Y., T. Mason & G. Lane n.d.) (noting that, as of i844, Methodists included approximately 1 million "Whites," 145,000 "Coloured," and 4000 "Indians"); JOHN NELSON NORWOOD, THE SCHISM IN THE METHODIST EPISCOPAL CHURCH, 1844: A STUDY OF SLAVERY AND ECCLESIASTICAL POLITICS 177 (Porcupine Press 1976) (1923).

(273) See MATHEWS, supra note 270, at 246-48.

(274) CARWARDINE, supra note 153, at 142 (quoting John McClintock).

(275) MATHEWS, supra note 270, at 260-61.

(276) Id. at 256-64.

(277) Id. at 263. The Discipline, however, required ministers to emancipate slaves "only when practicable and where liberated persons could 'enjoy their freedom.'" Id. at 252.

(278) Id. at 264.

(279) NORWOOD, supra note 272, at 80-81.

(280) Plan of Separation (June 8, 1844), in HENRY WALLER, FRANCIS T. HORD & RICHARD H. STANTON, THE METHODIST CHURCH CASE, AT MAYSVILLE KENTUCKY 13, 13 (Maysville, Eagle Office 1848).

(281) MATHEWS, supra note 270, at 268.


(283) See, e.g., Gibson v. Armstrong, 46 Ky. (7 B. Mon.) 481 (1847) (awarding the entire property of a local Methodist church in Maysville to the southern branch, based on majority rule).

(284) JOURNAL OF THE GENERAL CONFERENCE, supra note 282, at 137.

(285) NORWOOD, supra note 272, at 96-97.

(286) Id. at 100. Some accounts of the dissolution of the South's connection with the North record the vote as ninety-four to three. See, e.g., MATHEWS, supra note 270, at 279.

(287) MATHEWS, supra note 270, at 279.

(288) See, e.g., id.

(289) Padgett, supra note 271, at 72.

(290) See Resolutions of the Illinois Conference, CHRISTIAN ADVOC. & J., Oct. 15, 1845, at 39 (resolving that the creation of the MECS was a "direct contravention of ... the Discipline").

(291) Id.

(292) NORWOOD, supra note 272, at 109.

(293) Id. at 117 n.53 (providing the breakdown of votes for and against the Plan at conferences in Ohio, Illinois, Baltimore, Philadelphia, and New Jersey).

(294) See generally Richard J. Carwardine, Methodists, Politics, and the Coming of the American Civil War, in METHODISM AND THE SHAPING OF AMERICAN CULTURE 309, 331-34 (Nathan O. Hatch & John H. Wigger eds., 2000; Arthur E. Jones, Jr., The Years of Disagreement, 1844-61, in 2 THE HISTORY OF AMERICAN METHODISM, supra note 176, at 144, 168-76.

(295) See RAY HOLDER, WILLIAM WINANS: METHODIST LEADER IN ANTEBELLUM MISSISSIPPI 193 (1977) ("[Northerners had] shown an utter contempt for public opinion, which must and will take account of this reckless disregard of consistency, solemn engagements and common justice." (quoting William Winans)).

(296) NORWOOD, supra note 272, at 125.

(297) Smith v. Swormstedt, 22 F. Cas. 663 (C.C.D. Ohio 1852) (No. 13, 112), rev'd, 57 U.S. (16 How.) 288 (1854); Bascom v. Lane, 2 F. Cas. 994 (C.C.D.N.Y. 1851) (No. 1089).

(298) 1 Watts & Serg. 9, 38-39 (Pa. 1841).

(299) Bascom, 2 F. Cas. 994. For a full transcript of all nine days of trial, including the lawyers' arguments, see ROBERT SUTTON, THE METHODIST CHURCH PROPERTY CASE (Richmond & Louisville, John Early 1851).

(300) Lord's arguments are reprinted in SUTTON, supra note 299, at 149-209.

(301) Id.

(302) Choate's arguments are reprinted in id. at 231-91.

(303) Smith v. Swormstedt, 57 U.S. (16 How.) 288, 304 (1854), rev'g 22 F. Cas. 663 (C.C.D. Ohio 1852) (No. 13,112).

(304) Upshot of the Arbitration Measure, CHRISTIAN ADVOC. & J., July 17, 1851, at 26.

(305) SUTTON, supra note 299, at 368.

(306) Jones, supra note 294, at 178.

(307) On attacks from northern abolitionists directed against Nelson and other proslavery Justices in the early 1850s, see 2 WARREN, supra note 252, at 503, 543, 547.

(308) Bascom v. Lane, 2 F. Cas. 994, 999 (C.C.D.N.Y. 1851) (No. 1089).

(309) Id. at 1000-01.

(310) Id. at 1000.

(311) Id. at 1003.

(312) Jones, supra note 294, at 179.

(313) Smith v. Swormstedt, 22 F. Cas. 663 (C.C.D. Ohio 1852) (No. 13,112), rev'd, 57 U.S. (16 How.) 288 (1854).

(314) Id. at 664 (quoting the act of incorporation).

(315) Id. at 665.

(316) Id. at 664-65.

(317) Id. at 667.

(318) Id. at 670.

(319) Id. at 671 (quoting trial document).

(320) Id. at 672-74.

(321) Id. at 673.

(322) Richard L. Aynes, Humphrey Howe Leavitt, AM. NAT'L BIOGRAPHY ONLINE, (last visited Nov. 26, 2013).

(323) Smith v. Swormstedt, 57 U.S. (16 How.) 288 (1854).

(324) He was nominated to the U.S. Supreme Court in the closing days of the Tyler administration, in February 1845; several prior nominees had been rejected by the Senate. Nelson's confirmation was a surprise to Court watchers: though regarded as uncontroversial and careful, he was still a Democrat. Samuel Nelson, 13 DICTIONARY OF AMERICAN BIOGRAPHY 422-23 (Dumas Malone ed., 1934).

(325) Scott v. Sandford, 60 U.S. (19 How.) 393,457-69 (1857) (Nelson, J., concurring), superseded by U.S. CONST. amend. XIV; DON E. FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLITICS 39t (1978); 3 WARREN, supra note 252, at 15-16.

(326) 57 U.S. (16 How.) 288.

(327) Compare Bascom v. Lane, 2 F. Cas. 994, 994 (C.C.D.N.Y. 1851) (No. 1089), with Swormstedt, 57 U.S. (16 How.) at 299-300.

(328) Swormstedt, 57 U.S. (16 How.) at 304.

(329) Nelson did concede that separate "ecclesiastical organizations" were created by the "slaveholding States," id. at 304-05, but the entire argument of the northern church is omitted. Id. at 298-309.

(330) Id. at 304-05.

(331) Id. at 308-09.

(332) The Methodist Church Property, N.Y. TIMES, Dec. 3, 1853, at 4; see also The Methodist Book Concern, N.Y. TIMES, May 8, 1854, at 4 (discussing the background of the dispute).

(333) See GOEN, supra note 174, 65-107; MATHEWS, supra note 270, at 290 ("In the dissolution of a national identity within the churches, the moral disjunction of the United States was institutionalized.").

(334) Letter from Abraham Lincoln to the Methodist Episcopal Church (May 18, 1864), in 2 STOKES, supra note 177, at illus, following p. 410.

(335) 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 728 (Boston, Hilliard, Gray & Co. 1833). On Story's concept of the proper relationship between Christianity and the U.S. governments (state and federal), see MCCLELLAN, supra note 258, at 118-59.

(336) See, e.g., PHILIP SCHAFF, CHURCH AND STATE IN THE UNITED STATES 23 (N.Y., G.P. Putnam's Sons 1888).

(337) Supreme Court Justice Clarence Thomas has argued that "the Establishment Clause is best understood as a federalism provision--it protects state establishments from federal interference but does not protect any individual right." Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 50 (2004) (Thomas, J., concurring); see also Cutter v. Wilkinson, 544 U.S. 709, 726 (2005) (Thomas, J., concurring) (same). To the extent that state experience is relevant, however, disestablishment was a vitally important protection of individual rights in early America.


(339) 443 U.S. 595 (1979).

(340) Id. at 602-06. Justice Powell dissented, arguing that such an approach would increase court involvement in church controversies. Id, at 610 (Powell, J., dissenting). However, courts were already involved to a far greater extent than previously known--a circumstance that was widely tolerated.

(341) Id. at 602-06.

(342) Such a standard of deference was first imposed by the Supreme Court after the Civil War in Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871), a case arising out of the schisms over slavery. The standard was not reliably applied in state courts for many decades; even Justice Strong, who had sat on the Watson Court, did not think to mention the case in his lectures on law and religion in 1875. STRONG, supra note 22.

(343) See supra note 2 and accompanying text.

SARAH BARRINGER GORDON, Arlin M. Adams Professor of Constitutional Law and Professor of History, University of Pennsylvania. The author thanks Greg Ablavsky, Holly Brewer, Bill Ewald, Mitch Fraas, Smita Ghosh, Marie Griffith, Martha Jones, Sophia Lee, Serena Mayeri, David Konig, Greg Mark, Michael McConnell, Bill Nelson, Bill Novak, Dylan Penningroth, Leigh Schmidt, Micah Schwartzman, Richard Schragger, Stephen Siegel, Justin Simard, David Skeel, Richard Southgate, Tom Sugrue, Alison Tirres, John Witte, and especially Karen Tani for thoughtful critique and suggestions. Drafts of this article were presented at the NYU Law School Legal History Colloquium, Michigan Law School Legal History Forum, Washington University Danforth Center on Religion and Politics, Emory University Law School, American Law and Religion Roundtable, Stanford Legal History Seminar, American Society for Legal History, and the Penn Legal History Writer's Bloc, all of which generated productive ideas for revision and sharpening of the argument. Harper Seldin and Roger Dixon of the Penn Law Review have been exemplary editors.
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Title Annotation:Continuation of II. Enthusiasm and Regulation through Conclusion, with footnotes, p. 337-372
Author:Gordon, Sarah Barringer
Publication:University of Pennsylvania Law Review
Date:Jan 1, 2014
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