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Tuesday, June 03, 2008

"Do Churches Matter?"

I have posted on SSRN an essay -- originally presented as a lecture at Villanova -- called "Do Churches Matter?  Towards an Institutional Understanding of the Religion Clauses".  Here's the abstract:

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 structuralý014or, 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[.]"

Readers (if any) will notice immediately my debts to my fellow Prawf, Paul Horwitz.  That said, the piece is not his fault.  Comments welcome!

Posted by Rick Garnett on June 3, 2008 at 03:53 PM in First Amendment | Permalink

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Comments

Of course churches matter - where else can we play bingo?

Posted by: dittybopper | Jun 4, 2008 1:31:20 PM

Wonderful paper, Rick. I am a fan of these sorts of institutional arguments, myself. (Shameless self-promotion: See Hills, "The Constitutional Rights of Private Government," 78 NYU L Rev 144 (2003)).

But here's a tough question: Would you distinguish among churches based on the advantages of their institutional structure? It seems to me that this is a natural but controversial implication of the institutional position. For instance, a true-blue institutionalist would argue that a religious society's immunity from various regulations (under RLUIPA or the Yoder "hybrid rights" remnant of Sherbert or some implied carve-out from a generally applicable statutory scheme a la Catholic Bishop) would depend on various characteristics of the institution -- for instance, competitiveness in the relevant "market" for churches, capacity of the church to provide social welfare services or to police its members in ways that adequately substitute for the regulatory scheme being waived, and so forth.

This sort of institutionalism is, of course, controversial but not unprecedented. It does press against the idea that the government should not pick among churches. Yoder itself seemed to single out the Amish as especially worthy of an exemption from mandatory school attendance laws precisely because the internal structure of the church substitutes for the purposes of the laws (e.g., training for employment and economic security).

But this sort of argument, if made more generally, is sure to rub many religious egalitarians the wrong way.

Posted by: Rick Hills | Jun 4, 2008 8:55:39 AM

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