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[.

Persons and the Point of the Law

(Excerpt) I interviewed for a law-teaching position at Notre Dame Law School in the Fall of 1997. So far as I know, that visit to Our Lady’s university and to lovely, cosmopolitan South Bend, Indiana, was my first. I had never attended a Catholic school at any level and was not much of a Fighting Irish fan. The circumstances and conversations that resulted in my being on campus for that interview were both unpredicted and unpredictable, although I know now they were providential. In any event, what struck me most forcefully over that weekend—besides the freezing rain that persisted throughout the football game I attended—was my now-colleagues’ palpable enthusiasm for and excitement about what they were building. That is, the “Catholic law school project”—at that time, at Notre Dame—did not feel like and was not presented as an exercise in nostalgia, retrieval, or reaction. Instead, there seemed to be a widely shared sense that this “project” was something that had not really been tried before and that the goal was not to regain something that had been lost but rather to work on something new, namely, an engaged and excellent law school that was meaningfully, distinctively, and therefore interestingly Catholic. I am grateful to Professors John Breen and Lee Strang for, among other things, confirming that I and my colleagues were— and, I hope, still are—right

Common Schools and the Common Good: Reflections on the School-Choice Debate

Thank you very much for this timely and important discussion on school choice, religious faith, and the public good. First things first—Steven Green is right: The Cleveland school-voucher case is headed for the Supreme Court. And I am afraid that Mr. Green is also correct when he observes that the question whether the First Amendment permits States to experiment with meaningful choice-based education reform will likely turn on Justice O\u27Connor\u27s fine-tuned aesthetic reactions to the minutiae of Ohio\u27s school-choice experiment. Putting aside for now the particulars of the Cleveland case, though, I would like to propose for your consideration a few thoughts on the notion of the common good and its implications for the school-choice and education-reform debates. As you know, I have been blessed with the chance to teach law at Notre Dame, a Catholic school, and I suppose this is one reason why I have acquired the habit of liberally sprinkling terms like the common good atop my conversations about the Constitution, the First Amendment, and the place of religion in the public square of civil society. The term has, to be sure, a pleasant, pious, ring to it. Not long ago, though, a colleague and friend of mine—himself a formidable scholar in the law-and-religion area—asked, with good-natured exasperation, What does this \u27common good\u27 business mean, anyway

Sectarian Reflections on Lawyers\u27 Ethics and Death Row Volunteers

What should lawyers think about and respond to death-row volunteers? When a defendant accused of a capital crime attempts to plead guilty, or instructs his lawyer not to present a particular defense; when a convicted killer refuses to permit the introduction of potentially life-saving mitigating evidence - or even urges the jury to impose a death sentence - at the sentencing phase of a death-eligible case; when a condemned inmate refuses to file, or to appeal the denial of, habeas corpus and other post-conviction petitions for relief; when he elects not to object to a particular capital-punishment method, to call into question his own competence to be executed, or to file an eleventh-hour, last-ditch appeal citing newly discovered evidence of his innocence -what should lawyers do? These are not questions of merely professional interest, narrowly conceived, for lawyers and judges. That said, the death-row volunteer is of particular interest to lawyers because he poses particularly chilling problems for lawyers. It is suggested in this paper that something is missing from our thinking and conversations about the death-row-volunteer problem: Our arguments - which sound primarily in the register of choice, competence, and autonomy - reflect and proceed from an unsound moral anthropology. That is, they proceed from a flawed account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated. The unfortunate result is that the professed commitment to human dignity that drives and sustains so many capital-defense lawyers is often undermined by these same lawyers\u27 responses to death-row volunteers

Standing, Spending, and Separation: How the No-Establishment Rule Does (and Does Not) Protect Conscience

The First Amendment’s “Establishment Clause” is widely thought to protect “conscience.” Does it? If so, how? It is proposed in this paper that the no-establishment rule does indeed promote and protect religious liberty, and does safeguard conscience, but not (or, at least, not only) in the way most people think it does, namely, by sparing those who object from the asserted injury to their conscience caused by public funding of religious activity. The Supreme Court’s decision in Hein v. Freedom from Religion Foundation - a case in which the Justices limited taxpayer standing to bring Establishment Clause claims - reminds us of the importance in our constitutional law and tradition of structural devices that preserve individual liberty and, in so doing, helps to illuminate the real relationship between nonestablishment and the liberty of conscience: Nonestablishment and church-state separation protect conscience by committing us to the idea that there are, and ought to be, multiple, rival authorities. Protecting and respecting the freedom of conscience requires protecting and respecting the competing associations, institutions, and authorities that both clear out the space in which consciences are formed and engage in the formation of consciences. A community that cherishes the freedom of conscience will allow non-state formers-of-conscience to flourish, will acknowledge their appropriate independence, and will not aspire to remake them in its own image