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Monday, October 01, 2012

Schragger and Schwartzman, "Against Religious Institutionalism"

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 better scholars -- Paul Horwitz, Steve Smith, Fred Schauer, Perry Dane, Doug Laycock, and many others -- 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.  

Posted by Rick Garnett on October 1, 2012 at 01:53 PM in Rick Garnett | Permalink

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