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Wednesday, July 24, 2013

Garnett on "The Freedom of the Church"

I've posted on SSRN a paper that I did for a wonderful conference, last Fall, at the University of San Diego's Institute for Law and Religion. on "The Freedom of Church."  (Paul Horwitz's excellent paper, from the same conference, called "Freedom of the Church Without Romance," is available here.)  I've been thinking, for several years now (starting, probably, with this article), about the (very old) idea of the "freedom of the church" -- its content, its justifications, its contemporary relevance, etc.  Others have, too (and better), and this latest paper is an effort to respond, at least in part, to some of the important questions and challenges that have been raised, especially by Rich Schragger and Micah Schwartzman.  Anyway, the paper is called "'The Freedom of the Church':  (Towards) an Exposition, Translation, and Defense."  Here is the abstract:

This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.

The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.

Posted by Rick Garnett on July 24, 2013 at 11:55 AM in Constitutional thoughts, Rick Garnett | Permalink

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