Church and State in the States

In many state constitutions, the provisions dealing with the relationship of church and state differ substantially from the federal establishment clause. In this Article, Professor Tarr demonstrates that relying on the state constitutional guarantees may lead to markedly different results than would obtain under the first amendment. He argues that state constitutional provisions very often are ignored, apparently because practitioners mistakenly believe that state provisions merely repeat the strictures of the first amendment. Professor Tarr maintains that this is unfortunate and untrue, because our constitutional system allows a state constitution to provide for less, equal, or greater separation of church and state than is mandated by the federal Constitution.

Moreover, state constitutions often incorporate a distinctive perspective on church and state relations, due to many states' historical experiences in dealing with issues of religious freedom. Professor Tarr traces the historical experiences in Virginia and New York, demonstrating how they affected those states' constitutional protections of church and state, and shows that many state guarantees either reflect similar struggles over religion or borrow language from states that experienced such battles. More specifically, Professor Tar argues that the historical experiences in many states led to clearer language relating to the separation of church and state than is found in the first amendment, and that fidelity to state constitutional mandates requires that state courts not dismiss the state constitution and decide issues solely based on the first amendment, but rather give effect to the distinctive state constitutional perspective. He concludes that turning first to state constitutional guarantees in establishment clause cases is desirable and proper under our federal system.