RFI Senior Legal Fellow Ian Speir wrote an essay in Canopy Forum, a publication of Emory University’s Center for the Study of Law and Religion, in which he argues that just as business corporations often incorporate in Delaware, religious institutions need a state haven where a uniform set of rules protect their autonomy and operations nationwide. Speir sketches a preliminary legal framework for establishing such a haven. He writes:

Protections for the religious freedom and internal affairs of religious organizations are largely a matter of judge-made First Amendment law. While the Supreme Court has acted to protect institutional religious freedom in important cases, many American jurisdictions take a narrow view of this right and have acted to diminish protections for religious speech and exercise. In this environment, freedom-loving states should step up to protect and enhance institutional religious freedom. Drawing on the example of Delaware as the state of choice for business corporations, this essay proposes establishing a state haven for religious organizations and suggests that the law of such a haven state should exhibit the following seven features:

1.) Allowing religious entities to organize specifically as religious corporations;
2.) Maximum flexibility to ensure that corporate structure and governance align with the unique doctrines, values, and polity of religious organizations;
3.) A specialized court system, similar to Delaware’s Court of Chancery, staffed by judges who are expert in corporate law as well as the law of religious freedom;
4.) Imposition of special taxes and fees to pay for this specialized system of law;
5.) Codification of an internal affairs doctrine that requires respect for the autonomy of religious organizations and deference to their internal decisions;
6.) A “Religious Judgment Rule”—a rebuttable presumption that a given corporate action is essential to the organization’s religious mission; and
7.) A requirement of free exercise equality, i.e., equal treatment of comparable religious and nonreligious activities.

These seven features, while not an exhaustive list, would make a particular state attractive to religious organizations as a place to both incorporate and operate. A state haven would ensure the freedom of religious institutions to organize and act in accordance with their faith commitments, provide a uniform set of rules and standards by which they are governed, and impart stability and predictability to their operations nationwide.

Read the full essay: “A Religious ‘Delaware’: Establishing a State Haven for Religious Corporations.”