Steven K. Green, The Second Disestablishment

David Sehat

I’ve just finished reading Steven K. Green’s The Second Disestablishment, which is a most useful book for anyone interested in the history of religion and law in United States. Many historians have argued that disestablishment, the removal of state support for religious institutions that occurred from 1776-1833, separated church and state in the United States. Green makes a different and much more compelling argument. Rather than seeing disestablishment as a singular and once-and-for-all event, Green argues that disestablishment occurred in three distinct phases. The first happened when states stopped paying churches and removed civil disabilities for non-Protestants and non-Christians. He calls this political disestablishment. The second disestablishment, which his book focuses on, occurred from 1840-1900 with the removal of legal protections for Christianity. He calls this legal disestablishment. The third disestablishment occurred from 1947-1968, as the mid-twentieth-century Supreme Court sought to remove all vestiges of Christian control over American society and culture. He calls this cultural disestablishment.

I have various disagreements with Green that mostly stem from the Whig quality of his narrative, but the book still remains powerful and useful. For Green, the initial political disestablishment destabilized the entire system of establishment so that the second and third disestablishment were, if not inevitable, then perhaps unexpected, even if they took a long time to work out. This focus on the internal logic of disestablishment works well with his internalist focus on the operations of the law and is, in many ways, designed to be immediately useful for legal advocacy (Green is a lawyer who specializes in the religion clauses of the First Amendment and has significant litigation experience). I would have liked a broader focus on the process of this transformation in the wider culture and the cultural contestations that it relied upon and provoked. This also would have created a less teleological narrative. But the research is deep and powerful and his useful distinction between the kinds of establishment/disestablishment is critical to our understanding the multiple ways in which religion and the state were connected in the past. By temporalizing this process and by conceiving of disestablishment as a process as such, Green allows legal advocates a way to acknowledge the Christian control of law in the past while not supporting the renewal of that control in law today.