Beginning in 2016, the headlines of major publications began announcing that Donald Trump had successfully completed a “hostile takeover” of the Republican Party. What was meant by this claim, it appears, is that Trump had replaced the Grand Old Party’s commitment to free markets, balanced budgets, and low taxes with promises of “universal health-care, tax hikes on hedge-fund managers, and a $1 trillion infrastructure plan.” And rather than finding himself a dissenter within a party that rejected his views, Trump instead skyrocketed to the top of the party, which accordingly transformed itself to accommodate him. Whether this appraisal is accurate or not, it reflects concern about the associational integrity of a voluntary private organization—the Republican Party—and it suggests that some forms of organizational transformation could be problematic.
The same concern might arise regarding other private associations, including religious associations. Of course, all organizations undergo change. Notwithstanding stereotypical assumptions about religious organizations as ossified and impermeable to change, reform and transformation are endemic to religious communities, which inevitably partake in “an ongoing, dynamic relationship with the realities of everyday life.” Often, change occurs because of external events or pressures, which lead to internal disputes and, perhaps, the organization adopting new leadership and new values. For example, debates over pressing social issues such as slavery in the nineteenth century and same-sex marriage in the twenty-first century have permeated religious communities, leading ultimately to changed beliefs and sometimes schisms within congregations.
Moreover, it might appear at first glance that outsiders to those organizations—including the government—have no interest in either encouraging or discouraging such change. But perhaps the matter is not so simple. In fact, several constitutional doctrines appear to be aimed at protecting against some forms of organizational transformation, particularly for religious organizations. Yet, courts applying those doctrines rarely ask some of the difficult questions underlying this concern for associational integrity. For example, when does organizational transformation constitute a “hostile takeover”? And why, exactly, is this form of transformation a cause for concern?
This Article aims to grapple with these difficult questions about the meaning of hostile takeover, as well as about whether the state should care about it—that is, whether the state should ever act either to prevent or to encourage hostile takeover. Part I of this Article attempts to define hostile takeover in the context of religious organizations and compares it to the concept of hostile takeover in some secular contexts. Part II then considers what the position of the state should be vis-à-vis hostile takeover of religious organizations. This Article ultimately concludes that the state has only a very limited interest in either the facilitation or the prevention of hostile takeover.