Robin West on "The Freedom of the Church" and the social contract

Prof. Robin West has posted a forthcoming and characteristically powerful paper, here, called "Freedom of the Church and Our Endangered Civil Rights:  Exiting the Social Contract."  She is responding to, inter alia, this paper of mine and this paper by Steve Smith and dealing with issues that Paul Horwitz and many others have addressed in recent years.   Here is the abstract of Prof. West's paper:

In this comment I suggest that the “Freedom of the Church” to ignore the dictates of our various Civil Rights Acts, whether in the ministerial context or more broadly, created or at least newly discovered by the Court in Hosanna-Tabor, is a vivid example of a newly emerging and deeply troubling family of rights, which I have called elsewhere “exit rights” and which collectively constitute a new paradigm of both institutional and individual rights in constitutional law quite generally. The Church’s right to the ministerial exception might be understood as one of this new generation of rights, including some newly recognized by the Court over the last two decades, some with a slightly older lineage, and some sought after but not yet won by litigants — the point of which is to exempt their holders from legal obligations which are themselves constitutive of some significant part of civil society and to thereby create, in effect, separate spheres of individual or group sovereignty into which otherwise binding legal norms and obligations do not reach. They are “rights to exit” civil society and the social compact at its core, or at least, rights to exit some substantial part of it.

All three papers are set to be published in a forthcoming volume, edited by Chad Flanders, Zoe Robinson, and Chad Flanders.  In my own contribution, responding specifically to West, I write:

In Robin West’s bracing and eloquent chapter, she expresses serious concern by the asserted “right of churches and church-affiliated institutions . . . to be exempt, on grounds of institutional religious liberty, from some otherwise binding legal obligations, including the obligations to comply with the antidiscrimination mandate of our various Civil Rights Acts when hiring, promoting, or firing those of their employees who quality as ‘ministers.’”   These obligations, she emphasizes, “are no small thing. . . . [They] collectively constitute, rhetorically, our shared societal commitment to rid our workforce and our schools, and therefore our larger social world as well, of discriminatory animus and the effects of that animus; they are a public declaration of our collective promise to become a less insulting, less hurtful, more inclusive, more fully participatory, more generous, and fairer society.”   To violate these obligations is not only to harm an individual; “[i]t is also to break faith with and to undermine the shared national project of creating a world of equal opportunity and full participation[.]”   In her view, “it is not at all clear why our nations ministers, rabbis, and imams . . . should not be drawn from the full and diverse American public . . . , no less than are our nation’s public and private school teachers, police forces, firefighters, professors, health-care professionals, service providers, and retail, factory and construction forces.”   The ministerial exception, in her view – and, more generally, the proposed “freedom of the church” – is an example of a “newly emerging and deeply troubling family” of “exit rights . . . , the point of which is to exempt their holders from legal obligations which are themselves constitutive of some significant part of civil society, and to thereby create, in effect, separate spheres of individual or group sovereignty, into which otherwise binding legal norms and obligations do not hold.”

West’s indictment of my (and others’) position regarding the religious-freedom rights of religious institutions and the implications for government regulations of some of those institutions’ internal, doctrinal, educational, liturgical, ministerial, and expressive affairs is clearly and forcefully set out.  Her negative evaluation of the position rests, though, on assumptions that I reject and that I also regard as not well supported in our history and traditions.

Notwithstanding her repeated invocation of “our” commitments, declarations, obligations, projects, and aspirations, West’s social contract—insofar as it is asserted to include terms that commit religious communities to submit internal decisions regarding doctrine and polity for approval by political majorities—is a contract of adhesion.  The issue in, say, Hosanna-Tabor is framed in terms of efforts by would-be “miniature sub-cultural worlds” to “exit civil society, and the complex of laws, tradeoffs, and reciprocal rights and obligations that in turn constitute some aspect of our society’s legally constructed social contract.”   As I see it, though, the question under consideration is precisely whether or not this “complex” and this “contract” can justifiably, and consistently with our Constitution, history, and traditions, be said to extent to the relationship between a minister and a church.  When West says that “it is not at all clear why our nation’s ministers, rabbis, and imams . . . should not be drawn from the full and diverse American public,” part of the answer is that the “ministers, rabbis, and imams” are not “our nation’s”; they are their respective communities’ and it is up to those communities to decide how and from where they should be drawn.  The “freedom of the church” claim is not that these institutions should escape from an obligation that expresses “our” commitment to equal opportunity or “communitarian ideals of inclusiveness, participation and integration” but that they cannot justifiably be said to be under an obligation to select their ministers, teachers, doctrines, and beliefs in accord with commitments other than their own. 

In West’s chapter, she acknowledges that some exit rights, sometimes, “empower individuals to buck the dictates of an oppressive majority or an intrusive state.”  “At least some of these rights,” she states – the right of the pregnant woman over body, for example – “may seem wise, at least to some of us, and at least some of the time:  the parts of the social contract from which exit is sought and sometimes granted often appear to be, and may in fact be, foolish, draconian, or just witlessly intrusive.”   Still, she insists, exit rights have costs—they can undermine equality and “splinter civil society”—and these costs should be but, she charges, are not acknowledged by those who explore and defend the “freedom of the church.”

As I tried to establish earlier in this chapter, though, it seems to me that the “freedom of the church,” reasonably understood and operationalized, does (or at least can) serve to “empower individuals to buck the dictates of an oppressive majority or an intrusive state.”  It does (or at least can) serve, contrary to West’s claim, to “enhance individual liberty within civil society by expanding or deepening the rights of individuals to participate in that society.”  It is true that seeing and respecting the just limits on the political authority’s ability to define, and enforce compliance with, “our” commitments and obligations does have, sometimes, costs, in that some projects that a majority, or maybe just a vanguard, would like to pursue cannot be accomplished efficiently or completely.  West sees this fact as, sometimes, “tragic” and I agree that sometimes it is.  Still, these just limits are morally necessary and attractive, and they include, in my view, limits on the regulatory power of governments over the “freedom of the church,” rightly understood.