The Voluntary Principle and Church Autonomy, Then and Now

I. THE FOUNDING ERA CHURCH-STATE SETTLEMENT AND THE VOLUNTARY PRINCIPLE Professor Carl Esbeck's paper,1 which offers a historical perspective on the issue of church autonomy, will serve as a terrific resource for future work by legal scholars. Professor Esbeck introduces into the legal literature a discussion of how church-state relations developed in the forty years after the ratification of the First Amendment. He surveys the writing on that period by leading observers and scholars of American religion, such as Robert Baird, Sidney Mead, Philip Schaff, William Warren Sweet, and Alexis de Tocqueville.2 One can argue that, with respect to religious freedom, our nation's "founding era" really extends to encompass these later decades, concluding with the demise of the last state regime of tax assessments for religious teaching, that of Massachusetts, in 1833.3 Professor Esbeck primarily describes the church-state "settlement" of the founding era and the early republic. The nature of that settlement combined basic religious freedom for all faiths (free exercise) with government noninvolvement in the distinctive sphere of religious life and in the churches (nonestablishment). The specific features of the settlement included: (1) A separation of church and state that emphasized the exclusion of the state from "inherently religious" activities and that was designed primarily to protect the vitality and independence of religious groups.4 This separation stood in marked contrast to a separationism founded on a suspicion of religion and a desire to protect society from religious oppression-a prime example of which is the laicite principle arising out of the French Revolution.5 (2) Equal governmental treatment of all faiths-in part to avoid divisions that had arisen when colonial or state governments favored one faith.6 (3) A reaffirmation that religious principles and voices were crucial to the health of society and therefore were welcome in politics and public debate. Those religious principles, however, were to be nurtured in voluntary associations independent of the state.7 This founding-era settlement, Professor Esbeck notes, is well summarized in the "voluntary principle" described in the 1840s by Presbyterian historian Robert Baird. As Baird painted the picture, government would neither suppress nor promote worship: In every state liberty of conscience and liberty of worship is complete. The government extends protection to all. . . . The proper civil authorities have nothing to do with the creed of those who open a place of worship. On the other hand, . . . neither the general government nor that of the States docs any thing directly for the maintenance of public worship. . . . [Religion relies] upon the efforts of its friends, acting from their own free will.8 Professor Esbeck's focus on this widespread historical consensus is salutary for our current debates about church autonomy and other church-state issues. Taking a historical consensus as a starting point helps us-and. more importantly, judges interpreting the Constitution-to choose among the wide array of possible approaches to church-state relations. When judges are disciplined by history, they cannot simply enunciate whatever approach to church and state they like and baptize it with the broad language of the First Amendment. Moreover, history affects our present situation. America may be a nation of frontiersmen and immigrants, but even here individuals and societies do not entirely reinvent themselves. If the voluntarist approach was the dominant principle of church-state relations adopted in our founding era, it deserves at least serious consideration as an approach today as well. However, the lessons of history can also be complicated, and that is the issue I wish to explore in this commentary. Professor Esbeck aims to identify the widespread consensus about religion and government in early America. …