Churches as First Amendment Institutions: Of Sovereignty and Spheres

Horwitz, Paul
January 2009
Harvard Civil Rights-Civil Liberties Law Review;Winter2009, Vol. 44 Issue 1, p79
Academic Journal
This Article offers a novel way of approaching the role of churches and other religious entities within the framework of the First Amendment. Beyond that, it offers a broader organizing structure for the legal treatment of "First Amendment institutions"--entities whose fundamental role in shaping and contributing to public discourse entitles them to substantial autonomy in organizing and regulating themselves. Drawing on the work of the neo-Calvinist writer Abraham Kuyper, it encourages us to think about churches, and other first Amendment entities, as "'sovereign spheres": non-state institutions whose authority is ultimately coequal to that of the state. Under this model, a variety of spheres, including churches and other non-state institutions, enjoy substantial legal autonomy to carry, out their sovereign purposes. The state is limited in its authority to intervene in these spheres. However, a sphere sovereignty conception of the legal order retains a vital role for the state, which mediates between the spheres and ensures that they do not abuse their power with respect to the individuals subject to their authority. The Article provides a detailed introduction to both the general field of First Amendment institutionalism and the conception of sphere sovereignty offered by Kuyper. It argues that when these two seemingly disparate projects meet, the combination offers a richer understanding of our constitutional structure and the role of First Amendment institutions within it. It also argues that sphere sovereignty is closely related to many aspects of our existing constitutional history and to constitutional thought about the relationship between the state and non-state associations more generally. Finally, it offers a number of applications of this approach to current church-state doctrine, demonstrating that a sphere sovereignty-oriented approach to the treatment of churches as First Amendment institutions offers a legitimate, consistent, and conceptually and doctrinally valuable way of resolving some of the most pressing issues in the law of church and state.


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