"Are Churches (Just) Like the Boy Scouts?"

Here is a new paper of mine, called "Are Churches (Just) Like the Boy Scouts?", which I presented at a (great) law-and-religion conference last Spring at St. John's.  The paper talks about, among other things, the account provided by Professors Eisgruber and Sager of the church-autonomy principle; the idea of the "Freedom of the Church" (which I've tried to engage in more detail here); and an "institutional approach" to the Religion Clauses, about which Paul Horwitz has written so well (and which is also the subject of a paper I'm doing for the Villanova Law Review.)  Here is the abstract:

What role do religious communities, groups, and associations play – and, what role should they play – in our thinking and conversations about religious freedom and church-state relations? These and related questions – that is, questions about the rights and responsibilities of religious institutions – are timely, difficult, and important. And yet, they are often neglected.

It is not new to observe that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals' rights, beliefs, consciences, and practices. The special place, role, and freedoms of groups, associations, and institutions are often overlooked. However, if we want to understand well, and to appreciate, the content and implications of our constitutional commitment to religious liberty, we need to broaden our focus, and to ask, as Professors Lupu and Tuttle have put it, about the “distinctive place of religious entities in our constitutional order.” Are religious institutions special? May and should they be treated specially?  If so, how?  Why?

For some other, in-places-different views on the subject, see this new paper by Cass Sunstein, "On the Tension Between Sex Eq uality and Religious Freedom."