"Do Churches Matter?"

MOJ's very own Rick Garnett was at Villanova yesterday to give the annual Gianella Memorial Lecture, and his title was "Do Churches Matter? Towards an Institutional Understanding of the Religion Clauses."  The roster of earlier Gianella lecturers includes MOJers Steve Bainbridge and Michael Perry, as well as our friends Steve Smith, Joe Vining, and Cathy Kaveny.  Not surprisingly, Rick kept the standard very high, raising a really interesting and important question with his charactertistic subtlety.  As his title suggests, Rick is among those who suspect that the Court has taken an unjustifiably individualistic approach to what rights "religion" may and should have under our Constitution.  I hope Rick will post the paper soon. For now, I'll just float one question I pursued with Rick yesterday.  Granted that "establishment" provides a textual hook for a more institution- or group-friendly approach to our first freedom, what about originalist grounds for such a kindred approach?  The world assumed by the framers and ratifiers was ontologically dense with group persons that were understood to precede "the state."  True, some, such as Madison, took a remarkably individual-centered turn when they came to justifying a legal protection of religious freedom, but such justification is consistent with an affirmation that freedom for individuals may not be sufficient freedom for meeting religious demands.  As the pictures of the monks being evicted from the monasteries in the mountains of France early in the last century (i.e., not all that long ago) testify, something central is lost when the cenobium is dissolved.  As Russ Hittinger has argued, the cardinal sin of the modern state is its assertion of a monopoly on group personhood.  The framers of our Constitution did not suppose with Hobbes, Rousseau et al. that group persons exist by right only as a concession of the state.