William & Mary Bill of Rights Journal
George R. R. Martin's Faith Militant in Modern America: The Establishment Clause and a State's Ability to Delegate Policing Powers to Private Police Forces Operated by Religious Institutions
Since the very founding of the United States, the complex relationship between government and religion has troubled and concerned lawmakers. The Establishment Clause of the First Amendment to the United States Constitution was one of the first attempts to help define and restrain the government's role in that nexus. Thomas Jefferson, in a letter praising the Establishment Clause, famously wrote that the clause "buil[t] a wall of separation between Church [and] State." However, the extent of the protections that the Establishment Clause was intended to provide is unclear, and judges as well as legal scholars have struggled with interpreting the clause for years. In a 2019 case discussing Establishment Clause jurisprudence, Justice Samuel Alito stated: " The Establishment Clause of the First Amendment provides that 'Congress shall make no law respecting an establishment of religion.' While the concept of a formally established church is straightforward, pinning down the meaning of a 'law respecting an establishment of religion' has proved to be a vexing problem." In one, of the first cases attempting to clarify the limitations of the Establishment Clause, Everson v. Board of Education, the United States Supreme Court asserted: "The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs , for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa."
While Everson helped establish a baseline notion of what the Establishment Clause meant to the courts, it did not give a clear answer for moving forward. Rather, it has been necessary to develop tests and standards to help with case-by-case interpretations of the Establishment Clause as new challenges arise.
When considering Establishment Clause issues, courts are often required to examine government actions or delegations of power. One significant power that a government typically holds is the power to protect and police its citizens. Despite the importance of police powers to both state and federal government, policing in the United States has not been immune to the growing trend of privatizing government responsibilities. While the privatization of government functions in general has raised some concerns, the specific delegation of police powers has definitely been accompanied by periods of controversy and hesitation. While police force privatization continues to grow, concerns remain over how such a serious power and responsibility held by the government can be effectively and appropriately delegated to private organizations.
In fact, constitutional concerns over the Establishment Clause and the delegation of police powers came to an intersection in a recent Alabama state law. In a bill signed into law in June of 2019, the Alabama state legislature allowed the Briarwood Presbyterian Church, categorized as a megachurch, and its academic campus to create and maintain a police force. The bill was drafted in response to the church's request, which was originally presented to the Alabama state legislature several years earlier, but failed to garner the support necessary for approval twice. In the original request, officials from Briarwood indicated that although they had private security in the form of off-duty police officers from neighboring police departments, the recent increase in school and church shootings led them to believe that actual church police officers were necessary for safety and security. Despite the failure of the church's initial requests, its latest attempt was successful, and the Briarwood organizations, as well as a second private Christian school, now have the ability to create and maintain a private police force of trained and licensed officers.
This new Alabama law creates a relationship between a religious organization and a traditionally governmental power that certainly raises the potential for Establishment Clause questions. The law generates two separate issues that concern Establishment Clause doctrine. First, would a police department established and maintained by a church violate the Establishment Clause? The second, and potentially more nuanced, question is: would a police department established and maintained by a religious academy violate the Establishment Clause? In order to answer both questions, this Note first briefly examines the history surrounding the Establishment Clause. Next, it considers changing trends in who holds police powers. Additionally, this Note touches on how courts have come to analyze Establishment Clause issues and the appropriate standards to apply. Finally, it shows through analysis of the recently passed Alabama law that the Establishment Clause should bar Alabama from delegating police powers to the Briarwood Presbyterian Church, Briarwood Christian School, and Madison Academy.
Repository CitationAndrew Gardner, George R. R. Martin's Faith Militant in Modern America: The Establishment Clause and a State's Ability to Delegate Policing Powers to Private Police Forces Operated by Religious Institutions, 29 Wm. & Mary Bill Rts. J. 213 (2020), https://scholarship.law.wm.edu/wmborj/vol29/iss1/6
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