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.
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":
Here -- on the off chance that anyone has way too much time on their hands and feels like hearing about religious freedom and church-state relations from some bald guy who talks too fast and is using my name -- is the video of my "Constitution Day" lecture at Ohio University last week. I really enjoyed the trip, and the gathering.
I've posted on SSRN the introduction that Andy Koppelman and I did to our First Amendment Stories volume (buy it now, for that special holiday / Holy Day gift!). Here's the abstract:
This essay introduces a volume, First Amendment Stories, which the authors edited and to which a number of distinguished scholars contributed. The authors reflect on the tendency of First Amendment law to abstract away from specifics, and note that free-speech and religious-liberty law and doctrines generally aim for a certain kind of “neutrality”; in the interest of hitting that target, some considerations that are salient to ordinary common sense are deemed not to count. But, how is this neutrality possible? How does it ever happen that people embrace it? What specific contexts lead courts to abstract away from both specificity and context, to adopt positions that are neutral toward, say, theological truth and the viewpoint of speech? Is this move – this striving – toward neutrality justified, or justifiable? This question, the authors believe, runs through this volume and its chapters.
It turns out that, like “equality,” neutrality has a conventional meaning, one that, in many ways, can obscure the term’s contested, complicated, and multiple meanings. When it is not used merely to suggest a kind of serene nonjudgmentalism, the invocation of neutrality in conversations about law and politics is typically a shorthand gesture toward the generally understood value of removing some issues from political consideration, together with the arguments in favor of this removal. Such linguistic conventions are useful. The vague term “neutrality” may either introduce substantive argument or serve as a meaningful slogan in the many contexts in which it is difficult to develop arguments in a careful, systematic way. “Neutrality,” though, is a fluid term, as this volume’s several stories illustrate. It must take its shape from its container, the specific arguments in favor of withdrawing this or that substantive issue from politics.
The (always great) Word on Fire site has a nice piece up by Jack Thornton on the (by far, and without a doubt) best show on television, Breaking Bad. (On this, there can be no debate!)
I've read several times and admire a lot my friend Brad Gregory's book, The Unintended Reformation. Given the book's provocative (and, I think, powerful) claims, I was surprised that The New Republic invited Mark Lilla -- a prominent scholar but one who has dedicated significant energy to establishing things about modern times that Gregory aims to debunk -- to review the book ("Blame It On the Reformation"). It seems to me that Lilla has simply refused to actually engage Gregory's claim, and that he sees Gregory's book as an "oh, for the good old days that we've lost!" book when, in fact, the book is explicitly "against nostalgia."
That said, Lilla compares Gregory's book to After Virtue. Lilla does not mean the comparison as a compliment, but I'm inclined to think that it is. Anyway, read the review and see what you think.
I'm doing a public lecture -- sponsored by the Lumen Christi Institute and Chicago's Catholic Lawyers Guild -- in Chicago today, called "Religious Freedom in America Today." (More information is available here.) Come say "hello"!
In this paper, "A 'Hands Off' Approach to Religious Doctrine: What Are We Talking About?", I opened (intended to be goofily funny):
Step back for a moment, seventeen centuries or so. As fans of the Da Vinci Code are (in a way) aware, in the year 325, the Arian Controversy was raging. The Emperor Constantine, a convert to Christianity, was troubled by the strife among Christians and—perhaps more acutely—by the civil unrest that in many places accompanied their theological disagreements. Accordingly, he asked Christian bishops from around the world to gather for an ecumenical council, in present-day Turkey, to restore both religious concord and civil peace.
Today, Constantine’s move no doubt seems to most people a perfect example of that which the political authority cannot do and, indeed, should have no interest in doing. . . .
William Mattox writes, in USA Today, that for reasons similar to those that (rightly) make Austin residents eager to "Keep Austin Weird", we should oppose policies like the HHS mandate that have the effect, even if not the aim, of standardizing and homogenizing the sometimes-"weird" institutions and associations of civil society:
I worry that Obama's health care plan is doing to Catholics what those cookie-cutter national chains were threatening to do to Austin's bohemians: Rob them of their distinctive identity. Of their unique character. Of their freedom to be authentic.
Yes, I know Obama's contraception mandate provides an exception for Catholic churches. But it offers no such relief to those running Catholic schools, hospitals and charities who want to live out their faith (and follow their church's teachings) on more than just Sundays. In essence, the Obama administration's message to these Catholics, despite a cosmetic compromise, is akin to telling Austin's bohemians that they can dress like hipsters on the weekends so long as they behave like corporate shills Monday through Friday. . ..
Contraception and Conscience: A Symposium on Religious Liberty, Women’s Health, and the HHS Rule on Provision of Birth Control Coverage for Employees
Georgetown University Law Center
McDonough Hall
Philip A. Hart Auditorium
600 New Jersey Avenue, N.W.
Washington, DC
Friday, September 21, 2012
9:00 a.m.-4:00 p.m.
A conference examining the legal, theological, health, equality, and ethical issues relating to the recent Rule promulgated by the U.S. Department of Health and Human Services on “Coverage of Preventive Services Under the Patient Protection and Affordable Care Act.”
The symposium brings together legal, religious, and cultural scholars and practitioners for a day-long conversation about the increasingly contentious public debate surrounding the HHS Rule requiring employers to subsidize preventive health services for employees, the religious accommodations in the HHS rule, and the lawsuits filed by religious objectors challenging the rule.
Continental Breakfast—8:30-9:00
Introduction—9:00-9:10
Dean William M. Treanor, Georgetown University Law Center
Panel One – 9:10-10:45
The Legal Challenges to the HHS Contraception Rule. What is the nature of the HHS Rule and its religious accommodations? What is the status of the more than two dozen lawsuits challenging the HHS Rule? How are the courts likely to resolve the statutory and constitutional issues? How do claims of religious conscience apply to institutional employers, including for-profit employers? What are the relevant state interests—should the Rule be viewed as simply about enabling access to preventive health care, or also about ensuring equality in the workplace? How do these cases reflect broader trends in the development of the law of religious liberty? How should HHS frame its promised additional religious accommodation?
Panelists
Martin Lederman, Georgetown University Law Center
Louise Melling, American Civil Liberties Union
Melissa Rogers,Wake Forest University Divinity School, Center for Religion and Public Affairs
Robert Vischer, University of St. Thomas School of Law
Lori Windham, Becket Fund for Religious Liberty
Panel Two – 11:00-12:45
What is the Burden on Religious Exercise? Does the HHS Rule put religious employers to an untenable choice between obeying the law and honoring religious obligations, and if so, how? Does it require individuals or entities to “cooperate with evil” in a manner that their faith forbids? Does compliance with the law prevent them from “bearing witness” to their faith or create “scandal” by conveying endorsement of activities to which the employer morally objects?
Panelists
Lisa Sowle Cahill, Boston College
Patrick Deneen, University of Notre Dame
Cathleen Kaveny, University of Notre Dame
Michael Kessler, Georgetown University
John Langan, S.J., Georgetown University
Robert Tuttle, George Washington University School of Law
Panel Three – 2:15-4:00
A Broader Focus. How and why did this particular issue engender such concern and controversy? What are the historical antecedents? What does it tell us about how religious communities and institutions (especially those involved in provision of education and social services) can and should navigate rapidly changing norms in the public square? What are the implications of this debate for preventive health services? For women’s equality in the workplace and elsewhere in public life? What are the ethical implications for physicians and other health-care providers?
Panelists
Gregg Bloche, Georgetown University Law Center
Tracy Fessenden, Arizona State University
Eduardo Peñalver, Cornell University Law School
Robin West, Georgetown University Law Center
Robin Fretwell Wilson, Washington & Lee University School of Law
The conference is co-sponsored by the Georgetown University Law Center and the Berkley Center for Religion, Peace, and World Affairs at Georgetown University. It is made possible through a grant from the Ford Foundation.
