Rich Schragger and Micah Schwartzman have posted their new paper, "Against Religious Institutionalism", at SSRN. Here's the abstract:
The idea that religious institutions should play a central role in understanding
the First Amendment has become increasingly prominent in recent years. Litigation over the application of civil rights laws to ministers and the requirement that religious employers provide contraception coverage to their employees have elicited calls for a doctrine of church sovereignty based on an institutional conception of the Religion Clauses. In this Article, we present grounds for skepticism about this new religious institutionalism, especially the concept of “freedom of the church,” which we distinguish from the seemingly related but importantly distinct idea of church autonomy. We further explain why individual rights of conscience are sufficient to protect the free exercise and anti-establishment values of the First Amendment. Our argument, contrary to some recent scholarship, is that religious institutions do not give rise to a special set of rights, autonomy, or sovereignty, and that what might be called institutional or church autonomy is ultimately derived from individual rights of conscience. Indeed, for purposes of understanding religious liberty, we contend that any notion of institutional autonomy — to the extent it exists — can come from nowhere else.
I'm really excited about this paper, and not only because it closely engages my own work, and that of many better scholars -- including our own Tom Berg, Michael Moreland, and Robert Vischer -- who are also interested in an institutional approach to questions of religious freedom, church-state relations, and the First Amendment generally. I'm working on a paper / chapter that will respond adequately to Rich and Micah, but suffice it to say (for now) that, while I think "religious institutionalism" stands up to their criticisms, I also think that their contribution to the conversation is important and welcome.
If readers are interested in some of the papers of mine that Rich and Micah address, here is "Do Churches Matter? Towards an Institutional Understanding of the Religion Clauses," and here is "The Freedom of the Church." Here is the abstract for the former:
In recent years, several prominent scholars have called attention to the importance and role of "First Amendment institutions" and there is a growing body of work informed by an appreciation for what Professor Balkin calls the "infrastructure of free expression." The freedom of expression, he suggests, requires "more than mere absence of government censorship or prohibition to thrive; [it] also require[s] institutions, practices and technological structures that foster and promote [it]." The intuition animating this scholarship, then, is that the freedom of expression is not only enjoyed by and through, but also depends on the existence and flourishing of, certain institutions, newspapers, political parties, interest groups, libraries, expressive associations, universities and so on. These "First Amendment institutions" are free-speech actors, but they also play a structural - or, again, an "infrastructural" role in clearing out and
protecting the civil-society space within which the freedom of speech can be
well exercised. These institutions are not only conduits for expression, they
are also "the scaffolding around which civil society is constructed, in which
personal freedoms are exercised, in which loyalties are formed and transmitted,
and in which individuals flourish.
Similar "infrastructural" claims can and should be proposed with respect to the freedom of religion. Like the freedom of speech, religious freedom has and requires an infrastructure. Like free expression, it is not exercised only by individuals; like free expression, its exercise requires more than an individual with something to say; like free expression, it involves more than protecting a solitary conscience. The freedom of religion is not only lived and experienced through institutions, it is also protected and nourished by them. Accordingly, the theories and doctrines we use to understand, apply and enforce the First Amendment's religious-freedom provisions should reflect and respect this fact. If we want to understand well the content and implications of our constitutional commitment to religious liberty, we need to ask, as Professors Lupu and Tuttle have put it, whether "religious entities occupy a distinctive place in our constitutional order[.]"
And, of course, remember to buy Paul Horwitz's First Amendment Institutions for all the neo-pluralists on your holiday-shopping lists.
My friend and colleauge Jeff Pojanowski (Notre Dame) has a review up at SSRN of Steve Smith's (excellent) Disenchantment of Secular Discourse. Here is the abstract:
This review essay considers Stephen D. Smith’s most recent book, The Disenchantment of
Secular Discourse. Rather than focusing on the book’s argument about the
practices and pathologies of the public square, this essay uses Smith’s chapter
on scientific thought as a platform for exploring connections between
Disenchantment and Smith’s prior work in legal theory. The catalyst for these
reflections is Scandinavian legal realism. Considering these elements together
sheds light on both the limits and virtues of central ideas about legal
obligation and authority in contemporary jurisprudence. Such perspective points
to a broader argument that jurisprudential debates about methodology and
concepts may be as much about how we read the universe as they are about how we
understand law.
As Legal Theory-king Larry Solum would say, "highly recommended":
Villanova honored Alasdair MacIntyre last week as the inaugural recipient of the Civitas Dei Medal. Video of the event, including MacIntyre's splendid address ("Catholic Rather than What?") will soon be available, but, in the meantime, here are some brief remarks I delivered for the occasion:
Continue reading
On Friday, a federal district court in Missouri dismissed in its entirety one of the contraceptive mandate lawsuits, this one brought by Frank O'Brien and O'Brien Industries against HHS. It is not surprising (to me, anyway) that the free exercise and establishment clause claims were dismissed, as I've never thought those were particularly strong. I am surprised, though, that the RFRA claim was dismissed under 12(b)(6) for failure to state a claim upon which relief can be granted, as the court categorically rejected the notion "that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff's religious exercise."
A few points worth noting:
First, in this case, the court was faced with the original and most egregious version of the HHS regulations. Because O'Brien Industries is a for-profit entity, the plaintiffs (the company and its owner) are not entitled to any of the current or promised exemptions.
Second, the court's analysis did not turn on the for-profit status ("[T]his Court declines to reach the question of whether a secular limited liability company is capable of exercising a religion within the meaning of RFRA or the First Amendment."), which means that the court's reasoning would apply equally to Catholic Charities, Belmont Abbey College, or the Diocese of Rockville Centre if those entities were forced to pay for contraceptives or abortifacients in their employee health plans.
Third, the court's reasoning disregarded institutional identity as bearing any relevance to the substantial burden analysis. The court asserted that "plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [O'Brien Industries's] plan, subsidize someone else's participation in an activity that is condemned by plaintiffs' religion."
Fourth, the court mistakenly conflated free exercise as positive liberty with free exercise as negative liberty. The court emphasized that "RFRA does not protect against the slight burden on religious exercise that arises where one's money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one's own." In other words, forcing an employer to pay for X does not burden his religious exercise any more than failing to ensure the availability of X would burden the employee's religious exercise.
Fifth, the court quickly dismissed the argument that the huge number of current exemptions precludes a finding that the mandate is generally applicable for purposes of free exercise analysis under Employment Division v. Smith. ("The exemptions, for grandfathered plans, religious employers, and non-profits under the safe harbor do not undermine the general applicability of the regulations within the meaning of Free Exercise Clause jurisprudence.")
Sixth, the court accepts the equivalency (for "substantial burden" purposes) of paying salaries and paying for particular services under a health plan. ("Already, [plaintiffs] pay salaries to their employees -- money the employees may use to purchase contraceptives or to contribute to a religious organization. By comparison, the contribution to a health care plan has no more than a de minimis impact on the plaintiff's religious beliefs than paying salaries and other benefits to employees.") This misses the scandal that is created by more direct complicity with the illicit ends. If a Belmont Abbey College employee were to bring the invoice from an abortion provider to work and demand that her employer pay it, is that really the same as using salary to pay the abortion provider? For purposes of determining whether a government requirement amounts to a substantial burden on the employer's religious exercise, apparently it is.
Finally, if this court is correct in its analysis, then HHS could rewrite the regulations, remove any exemption for religious employers and add abortion to the list of covered services. The Catholic Church could be forced to pay for its employees' abortions without creating a substantial burden on religious exercise for purposes of RFRA, and that issue would be so straightforward that it could be handled on a 12(b)(6) motion.
