Do Churches Matter - Towards an Institutional Understanding of the Religion Clauses

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 structural - or, 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\u27s 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[.

Religious Accommodations and – and Among – Civil Rights: Separation, Toleration, and Accommodation

This paper expands on a presentation at a recent conference, held at Harvard Law School, on the topic of “Religious Accommodations in the Age of Civil Rights.” In it, I emphasize that the right to religious freedom is a basic civil right, the increased appreciation of which is said to characterize our “age.” Accordingly, I push back against scholars’ and commentators’ increasing tendency to regard and present religious accommodations and exemptions as obstacles to the civil-rights enterprise and ask instead if our religious-accommodation practices are all that they should be. Are accommodations and exemptions being extended prudently but generously, in as many cases and to as many persons and entities as possible, in a sincere effort to welcome religious minorities, objectors, and dissenters as fully as we can into what Justice Harlan called “the dignity and glory of American citizenship”? What barriers exist to the promotion and achievement of civil-rights goals through religious accommodations and how might these barriers be overcome? Are civil-rights laws being designed and enforced in ways that guard against unintended or unjustified disregard for or sacrifices of the civil (and human) right to religious liberty

The Political (and Other) Safeguards of Religious Freedom

This essay is a contribution to a symposium marking the 20th anniversary of the Supreme Court’s still-controversial decision in Employment Division v. Smith. That decision, it is suggested, should not be read as reflecting or requiring hostility or indifference towards claims for legislatively enacted accommodations of religion. Smith is not an endorsement of religion-blind neutrality in constitutional law; instead, it assigns to politically accountable actors the difficult, but crucially important, task of accommodating those whose religious exercise would otherwise be burdened by generally applicable laws. The essay goes on to suggest several things that must be true of our law and politics if this assignment is to work well, that is, to in fact promote and protect religious freedom. Among other things, it is proposed that governments should attend carefully to the “infrastructure” of religious freedom, and should work to create and sustain the institutional and other conditions that are conducive to religious liberty. And, notwithstanding Smith, courts should enforce vigorously, using judicially manageable standards, the church-autonomy principle and the institutional separation of religious and political authority. After all, the “political safeguards” of religious freedom can be effective only if there are work in society associations and authorities that are not merely political

A Hands-off Approach to Religious Doctrine: What are We Talking About

At the 2008 Annual Meeting of the American Association of Law Schools, the program organized by the Section on Law and Religion presented for consideration the claim that “the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief.” The Court, it was proposed, is — more and more — taking a “hands-off approach to religious doctrine.” This proposal was, and remains, timely and important, as is illustrated by — to mention just a few, diverse examples — the ongoing property-ownership dispute between several “breakaway” Episcopal churches in Virginia, on the one hand, and the Episcopal Diocese of Virginia, on the other; by the Supreme Court of Canada’s recent ruling that an agreement regarding a religious divorce under Jewish law is enforceable in civil courts; by a federal judge’s ruling that the Georgia Institute of Technology had unconstitutionally taken on the task of instructing students about the merits of various traditions’ positions on sexual morality; and perhaps even by the Speaker of the House’s controversial pronouncements, on “Meet the Press,” about Roman Catholic teaching with respect to abortion. In each of these controversies, a government actor is being asked to decide a question, or has presumed to resolve a dispute, involving the meaning or content of religious teaching. But, such examples notwithstanding, is the proposed claim true? That is, is it really the case that American courts are showing such an “increasing unwillingness,” and that they are doing so in accord with any identifiable principle or “approach”? If there is, in the Court’s law-and-religion toolkit, something like a hands-off “rule,” then what are that rule’s scope, content, and justifications? Which feared harms does it protect against, and which goods does it promote? When it comes to “matters that relate to the interpretation of religious practice and belief,” why is the Court doing, and should it be doing, what it is doing

Chief Justice Rehnquist\u27s Enduring Democratic Constitution

William H. Rehnquist\u27s essay, The Notion of a Living Constitution, was delivered as the Will E. Orgain Lecture and then published thirty years ago, back when Rehnquist was still a relatively junior Associate Justice. The piece provides a clear and coherent statement of Rehnquist\u27s judicial philosophy, and the Harvard Journal of Law and Public Policy and the Texas Law Review deserve thanks for their initiative and generosity in reproducing it, in memory of his life and work. This introduction to Rehnquist\u27s essay highlights his view that the Notion of a Living Constitution was to be resisted, not out of pious reverence for the Founders\u27 insight into the moral, economic, and social challenges facing late-Twentieth Century society. Nor did his critique purport to be the product of a tight deduction from premises relating to the very nature of a written constitution. He was not a fundamentalist, or even a thoroughgoing, principled originalist. His aim was not to deny or resist constitutional change, but instead to insist and ensure that We the People, the ultimate source of authority in this Nation, acting through our politically accountable representatives, retain the right to serve (or not) as the agents of and vehicles for that change. What animates Rehnquist\u27s essay - and, indeed, his career on the Court - is not so much a misplaced attachment to stasis, or a slavish adherence to ideological formulae, but a clear-eyed appreciation for tension that can exist between the antidemocratic and antimajoritarian facets of judicial review and the political theory basic to democratic society