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Saturday, April 10, 2010

"Religious Liberty, Church Autonomy and the Structure of Freedom"

Here's a link to a book chapter I've done, for a forthcoming volume (edited by John Witte and Frank Alexander) on "Christianity and Human Rights."

What is the “right to freedom of religion,” a right which our leading human-rights instruments commit us to protecting, and what are the legal and other mechanisms that will sustain and vindicate our commitment? Some mechanisms might be better (or less well) designed for the purpose and so might work better (or less well) than others; some actors and authorities might be more (or less) reliable and effective protectors than others. In other words, the project of protecting human rights – including the right to religious freedom – involves not only reflecting on human goods and goals, but also wrestling with questions about institutional design and competence.

This chapter considers both the content of religious freedom and the ways it is protected and promoted. It proposes, first, that the “right to freedom of religion” belongs not only to individuals, but also to institutions, associations, communities, and congregations. Just as every person has the right to seek religious truth and to cling to it when it is found, religious communities have the right to hold and teach their own doctrines; just as every person ought to be free from official coercion when it comes to religious practices or professions, religious institutions are entitled to govern themselves, and to exercise appropriate authority, free from official interference; just as every person has the right to select the religious teachings he will embrace, churches have the right to select the ministers they will ordain.

Next, it is suggested that the right to church autonomy is a structural mechanism for protecting both the freedom of religion and human rights more generally. The relationship between the enterprise of protecting human rights and religious communities’ right to self-determination is a dynamic, mutually reinforcing one. Human rights law, in other words, protects church autonomy – it protects the freedom of religious communities to govern and organize themselves, to decide religious matters without government interference, to establish their own criteria for membership, leadership, and orthodoxy, etc. – and, in turn, church autonomy promotes the enjoyment and exercise of human rights. This mechanism is, John Courtney Murray thought, “Christianity’s basic contribution to freedom in the political order.” If we understand and appreciate this contribution, we will better understand and appreciate that often misunderstood idea, “the separation of church and state.”

Comments and reactions welcome!

Posted by Rick Garnett on April 10, 2010 at 09:00 AM in Rick Garnett | Permalink

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Comments

Rick, on this question, I *think* I am pretty non-squishy. I'm not sure I'd want to couch my position in terms of Smith's hybrid-rights doctrine (though, since it's there, I guess it would work in a pinch), but I would say (Kathleen Brady, at Villanova, has written all this up very nicely, I think) that the church-autonomy / institutional-free-exercise idea is not merely the Smith / RFRA / individual-exemptions-for-religiously-motivated-conduct idea applied to groups.

That said, you seem to be asking about *individual* free-exercise claims: i.e., "two sets of parents making free exercise claims to keep their kids out of school." And, your suggestion is that we might sensibly treat these requests for exemptions differently, taking into account the fact that one set "belongs to a long-established church with a community that has been around for awhile and a track record of insuring that their members are economically independent and socially well-adjusted (whatever that means)." It's not clear to me that this hypo involves *institutional* free exercise -- a religious institution's right to govern itself -- or whether it instead involves an evaluation of the costs and benefits of a particular request for an individual exemption, with the community's track record of increasing (rather than subtracting from) social utility being one of the factors relevant to that evaluation.

Posted by: Rick Garnett | Apr 11, 2010 8:54:47 AM

Howard, I am not sure what you mean, but certainly *I* hope that you won't be disappointed by the chapter. If you are taking about the "which rule should courts cite when they invoke and apply the ministerial exception?" debate, then no, I don't get into whether the exception deprives courts of "jurisdiction." But, looking at the bigger picture, yes, I *do* think the church-autonomy principle is "jurisdictional", in the sense that part of what the principle does is identify for us questions that are (or, at least, should be regarded as being) outside the *power* of the political community to adjudicate.

Posted by: Rick Garnett | Apr 11, 2010 8:44:55 AM

I look forward to reading this. I hope you did not argue that church autonomy is a jurisdictional doctrine.

Posted by: Howard wassernan | Apr 10, 2010 9:18:56 PM

As you know, Rick, I am very sympathetic to institutional accounts of rights. But i wonder if you would bite the bullet and go one step further than your account above suggests: Would you agree that sometimes institutions have greater rights to religious free exercise than individuals acting outside of any institution?

I have the Yoder situation in mind. Consider two sets of parents making free exercise claims to keep their kids out of school. One set belongs to a long-established church with a community that has been around for awhile and a track record of insuring that their members are economically independent and socially well-adjusted (whatever that means). The other set belongs to a "church" of their own devising, with no such track record or self-sustaining community.

Is it, or should it be, any part of free exercise doctrine that the former might have a greater claim to an exemption from a generally applicable laws under the "hybrid rights" exception to Smith than the former? The bullet-biting, true-blue "rights institutionalist" (e.g., myself) would not flinch at discriminating among rights claimants by answering "yes" to both questions. What about you? (How) would you fit such an institutional claim into either your theory or the existing doctrine?

Just curious about whether you are a fellow fanatic institutionalist or, as Margaret Thatcher used to say, "a squish."

Posted by: Rick Hills | Apr 10, 2010 10:05:28 AM

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