Tuesday, July 23, 2013
Mary Ann Glendon and "The Structure of Religious Freedom"
Here, at Public Discourse, is a shorter version of a paper I shared at a recent conference, sponsored by the Notre Dame Program on Church, State, and Society, dedicated to exploring and celebrating the work of Prof. Mary Ann Glendon. Here is a bit:
[C]onstitutionalism depends for its success on the existence and activities of non-state authorities. It should protect, but it also requires, self-governing religious communities that operate and evolve outside and independent of governments. It is a mistake to regard “religion” merely as a private practice, or even as a social phenomenon, to which constitutions respond or react. Instead, the ongoing enterprise of constitutionalism is one to which religious freedom contributes. Human rights depend for protection and flourishing not only on enforceable constraints on government but also on the structure of the social order. With respect to matters of polity, doctrine, leadership, and membership, the autonomy that religious institutions enjoy simultaneously contributes to and benefits from that structure.
https://mirrorofjustice.blogs.com/mirrorofjustice/2013/07/mary-ann-glendon-and-the-structure-of-religious-freedom.html
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Rick,
A few comments on your paper over at Public Discourse:
The paper ignores the historic behavior of religious institutions limiting the religious rights of non-member individuals as well as other religious institutions. It seems to regard the state’s protection of individual religious rights as a threat to institutional rights. In fact the state’s protection of individual rights is primarily a threat only to the political power of religious institutions to control the lives of its members and non-members. Such institutional power is not an institutional right.
Regarding: “[C]hurch autonomy promotes the enjoyment and exercise of human rights.”
This is true only when the state can ensure that membership in the church and submission to its governance is actually voluntary.
Regarding the “freedom of religious communities to govern and organize themselves, to decide religious matters without government interference, to establish their own criteria for membership, leadership, orthodoxy, and so on”, this freedom does not extend to governing the lives of non-members and ex-members of that community.
It is significant that, in the last paragraph of your paper, the two examples of legal “neglect of the associational and institutional dimensions of religious freedom” are both examples of religious institutions imposing their beliefs and governance on non-members. These are forms of church autonomy we are all better off without.
Jack Balkin notwithstanding, it is simply not shown that constitutionalism “requires self-governing religious communities that operate and evolve outside and independent of governments”. There is no evidence that this is true, nor any good reason to think it so. At most it is an unlikely and certainly unsubstantiated claim.
History shows only that religious institutions are inevitable; and that constitutionalism must acknowledge this fact and accommodate its reality. But it is a stretch to say constitutionalism requires these institutions. Better to say constitutionalism cannot avoid dealing with these institutions.
Regarding: “Human rights depend for protection and flourishing not only on enforceable constraints on government but also on the structure of the social order.”
Almost. Human rights also depend for protection and flourishing on enforceable constraints on the social order too. Government is often the enforcement mechanism of social structures; indeed government is “a structure of the social order”. Because the state is merely a subset of society, human rights are not merely rights against the state, they are rights against all other persons and social institutions. Society has its needs, as do individuals. The great political dilemma is how to resolve apparent conflicts between society and individuals.
Regarding: “the increasingly powerful drive to reduce churches to voluntary associations of individuals, to reduce religious freedom to a consequence-free and manifestation-free right of private belief, and to impose on religious and other non-state institutions the same liberal “nondiscrimination” rules that (appropriately) apply to governments.”
Should Churches be INVOLUNTARY associations? How would INVOLUNTARINESS promote liberty?
On whom should fall the consequences of belief? Why would it fall on non-believers?
Why are “liberal ‘nondiscrimination’” rules appropriate for governments but not for religious institutions?
The crux of the argument is, I think, found in this sentence (at the end of the 12th para): “Today, though, the infrastructure on which authentic freedom under law depends is neglected, under stress, and vulnerable.”
Certainly some religious institutions feel that their influence over the state and its policies is fading, but this fading is not a threat to religious liberty, it is a threat to religious institutional power, nothing more. Religious institutions are under stress because members are voting with their feet, becoming “nones” or shifting to other religious communities.
Religious liberty does not need current religious institutions to survive, much less to control society. Nature, abhorring a vacuum, will replace the old and failed with the new; and so long as individual liberty is protected, new institutions will be able to “govern and organize themselves, to decide religious matters without government interference, to establish their own criteria for membership, leadership, orthodoxy, and so on.”
To reiterate: the state’s protection of individual rights over and against church autonomy is primarily a threat to the political power of religious institutions to control the lives of its members and non-members; and little more. This institutional power is not an institutional right.
sean s.