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Monday, November 19, 2012

The Varieties of Co-Religionist Commerce II

As I promised (or threatened?) in my last post, I want to think about "co-religionist commerce" by dividing it up into institutionalist and non-institutionalist domains.  In the past, I''ve written and blogged a bit about non-institutional co-religionist commerce - and I'll probably say a bit more about it sometime later this month - but I've recently been working on the institutional side of things in a recent article, Religion's Footnote Four: Church Autonomy as Arbitration, 97 Minn. L. Rev. (forthcoming 2013).

As per the title, what I have in mind in the institutional context are some of the debates over "church autonomy" - that is, debates over the autonomy granted religious institutions over internal decision-making and disputes resolution.  Popular advocates of what we might term "religious institutionalism" (i.e. strong protection of religious institutional autonomy) include Prawfs own Rick Garnett (e.g. here) and Paul Hortwitz (e.g. here) and also Steven Smith (e.g. here).  Recent debates on this front include those over the contraception mandate and those over the ministerial exception, which (at a minimum) exempts the relationship between churches and their ministers from liability under various anti-discrimination statutes.  Among other issues, both of these examples represent some of the inherent complexities of co-religionist commerce; it is frequently difficult to establish the appropriate boundaries for the interpretation, enforcement and regulation of conduct that is motivated by both religious and commercial interests mix.

As has been discussed here on Prawfs previously, there has been some recent push back against this type of religious institutionalism, most notably the recent article by Richard Schragger and Micah Schwartzman, "Against Religious Institutionalism."  Much of this criticism has focused on whether religious institutions should have an rights that are not simply derivative of the individual rights of their members.  Schragger and Schwartzman simply don't see the existence of a religious institution as adding any reason for increased constitutional protections.

In my next post, I'll give my own take, which tries to strike a balance in between religious institutionalists and their critics.

Posted by Michael Helfand on November 19, 2012 at 06:12 PM in Constitutional thoughts, Religion | Permalink

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