The Second Disestablishment illuminates much that has gone unexplained about the progressive separation of church and state, not only from American politics, but also from law itself. More specifically, by explaining the effect of state action, not merely federal constitutional principles and legal reform, not just case law, on American church-state relations, the author has brought the nineteenth century into a historiography that has largely ignored it. Most analysts, including the Supreme Court itself, have jumped nimbly from Jefferson's Danbury letter to mid-twentieth-century judicial opinions with few stops in between. This book takes a more circuitous route, and it is a trip worth taking.
Green, professor of law at Willamette University and former legal director for Americans United for Separation of Church and State, begins his analysis with the familiar question: Did the founders intend to privilege religion when they exempted it from federal legislative action? His negative answer is well advocated, but no more dispositive of the question than some arguments in the affirmative. The usual suspects are marshaled to predictable ends. Possibly because debate about the founders' intentions dichotomizes sacred and secular in ways foreign to the thought-world of all but the most radical of these historical actors, a winner cannot be declared and the intention of the “First Disestablishment” remains oblique. Nevertheless, Green provides a model argument for one side of the debate; namely, that the founders were motivated exclusively by secular commitments and any of their statements to the contrary were religious rhetoric in service to Enlightenment principles.
Green is much more persuasive when analyzing the evolution of the new republic's reception of disestablishment and the progressive enlargement of its scope in the nineteenth century. This was accomplished in three stages: political, legal, and cultural. First, political disestablishment of churches from formal state action was accomplished by the first years of the century. Abreaction to the consequent diminishment of denominational authority inaugurated a second phase that would lead to the removal of religious purposes from the law itself. Catalyzed by fears of religious decline and motivated by evangelical revivals and moral reform, some antebellum Americans championed a founding mythos of Christian nationhood. Central to this campaign was the conviction that Christianity was part of American law, especially judicially articulated common law, and the law therefore should be devoted to effecting Christian purposes. Meanwhile, others were becoming convinced to the contrary: law should be an instrument of public policy, not divine will. They championed legal reforms designed to codify the law, making it more predictable, scientific even, and responsive to the social demands of an increasingly market-driven and religiously diverse society.
The effect of burgeoning markets, industrialization, westward expansion, immigration, and new pluralism is well known by scholars of American religion. Green brings to this oft-told tale the less familiar conclusions of legal historians and productively applies them to the question of church-state relations. This adds a new cast of characters: legislative and judicial agents who felt the need to employ secular purposes to rationalize and to interpret the nation's laws, old and new. Even laws based in religious scruple, such as blasphemy and Sabbath observance, required legitimating in terms of public policy, but nevertheless admitted multiple and especially commercial exceptions to their application. The resulting desacralization of law was unintended, but no less real. Green illustrates this irony with a careful analysis of the Protestant–Catholic school debates that ended the century. Forced to argue that their schools were not only nonsectarian but also achieved secular purposes, Protestant advocates both reflected and shaped the evolution toward greater separation of church and state.
Explicating the conflicting agendas of moral and legal reformers and their unforeseen consequences is the book's key contribution and basis for its title. Simply stated, the decline in belief that Christianity was a part of American law and the substitution of secular for religious purposes precipitated a “second disestablishment” by the end of the nineteenth century, not the 1920s as is commonly held by American religious historians. Comprised of both a shift in popular perception and formal rule-making, this new remove of church from state was cultural as well as legal. Thus, Green concludes, it provided the social underpinnings for later, mid-twentieth-century stripping of religious forms from public institutions, including the Supreme Court's seemingly revolutionary prohibition of all devotional exercises in public schools. Disestablishment of the law was the bridge between the Danbury letter and Everson.
Like the better books written by lawyer historians, Second Disestablishment offers a strong argument based on an interrogation of existing authority and attention to evidence and its necessary detail. The author shows knowledge of the sources and uses them responsibly, giving contrary arguments their due, though students of American religious history may find some of his generalizations facile. Similarly, Green's easy dismissal of the late nineteenth-century “Mormon cases” in a single sentence elides the enduring force of the ideal of a Christian nation sustained by Christian law. It also misses an opportunity. As Sarah Barringer Gordon has shown, these cases are not just about Mormons but also about the authority to define marriage. And, as recently demonstrated by gay marriage cases and constitutional amendments, few matters are as central as marriage to the question of religious purpose and state regulation or the disestablishment of religion and law.
