Subsidiarity and a localized approach to religious liberty

I've spent a good deal of time exploring subsidiarity's call for localized empowerment when it comes to addressing social problems, but I've been forced to think about subsidiarity in a new way by an important article on religious liberty in the current issue of the Harvard Law Review. Rich Schragger's The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 Harv. L. Rev. 1810 (April 2004), argues that "the chief threat to religious liberty" is "the exercise of centralized power generally, either to benefit religion as a class or to burden it," and that therefore courts' religion clause jurisprudence should be more skeptical of federal statutes that impact religion than similar local statutes. Schragger explains:

[L]ocal government -- and more generally the decentralization of power -- is a robust structural component of religious liberty. First, the dispersal of political authority prevents the amassing of power to benefit or burden religion in any one institution, thus guarding against governmental overreaching. Second, the dispersal of political authority gives local governments the ability to serve as counterweights to private religious power, thus preventing religious overreaching.

I've always thought of subsidiarity in terms of the dispersal of power, but never in terms of power to define individual rights. Schragger does not frame his argument as a function of subsidiarity (although he does cite an earlier article of mine on subsidiarity as support), but the implications are striking. Given that subsidiarity does not lump all forms of government power together as oppressive -- i.e., there's a big difference between a federal agency taking over a particular function for the entire nation and the local village board taking over the function -- we should be more comfortable with local government action. Does our relatively greater level of comfort with local government not extend to the area of individual liberty? If it doesn't, have we bought into the bright-line hyper-individualism that distinguishes many folks who lack the remotest interest in furthering subsidiarity? Are we simply being self-serving and carving out religious liberty from other individual rights?

One area where subsidiarity has arguably already extended to debates over rights is abortion. We seem more comfortable with local government action when it comes to abortion rights, as we'd rather let states settle the issue (see my note, Religion and Roe: The Politics of Exclusion, 108 Harv. L. Rev. 495 (1994)), but maybe that's just because it's preferable to the current Court-imposed alternative, not out of loyalty to any broader structural principle. The question thus remains: if we want authority in this country to be dispersed broadly, are we being inconsistent when we call for uniform standards of religious liberty to be applied regardless of the government actor at issue? I haven't reached an answer, but I highly recommend Schragger's article for anyone interested in the question.

Rob