Legal Commentary

I'm very pleased to say that I've posted on SSRN a draft of a new paper, Churches as First Amendment Institutions: Of Spheres and Sovereignty.  A slightly different version is forthcoming in the Harvard Civil Rights-Civil Liberties Law Review, which has been a pleasure to work with.  Here's the abstract:

This Article offers a novel way of approaching the role of churches
and other religious institutions within the First Amendment framework.
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 to organize and regulate themselves
without state interference. 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": nonstate
institutions whose authority is ultimately coequal to that of the state. In
the sphere sovereignty model, a variety of spheres, including the church
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. A sphere sovereignty conception
of the legal order retains a vital role for the state, however; the state
mediates between the spheres and ensures that they do not abuse their
power with respect to the individual subjects of 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 these two seemingly
disparate projects, when combined, offer a richer understanding of our
constitutional structure and the role of First Amendment institutions,
such as churches, 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. It offers a number of applications
of this approach to current church-state doctrine. It demonstrates 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.

Now, I know what you're thinking: Another paper combining First Amendment institutionalism with Dutch neo-Calvinism?  Hell, the law reviews are full of 'em!  But, although I am biased, I hope and think that this is a fairly novel paper and a good contribution to both the First Amendment institutionalism literature and the literature on the role of religious entities in church-state litigation, encompassing such issues as the ministerial exemption, church property disputes, clergy sexual abuse litigation, and taxpayer standing under the Establishment Clause.  I welcome readers and comments.  Enjoy.