A constitution that puts judge-made law first will be an increasingly unoriginalist constitution as precedent is piled on precedent.
Freedom of Religion and the Freedom of the Church
It is widely accepted—in American law, in other countries’ laws, and in human-rights law generally—that “freedom of religion” is fundamental and that it should be protected, respected, and promoted. The Universal Declaration of Human Rights of 1948, for example, called on all political communities to “promote respect” for the right to religious freedom and to “secure [its] universal and effective recognition and observance.”
However, and to put it mildly, a commitment to religious freedom is easier to profess than to operationalize. Identifying the content, reach, and limits of religious freedom; working out its implications and applications; and constructing effective doctrines and other mechanisms for its legal and judicial enforcement continue to be difficult and contested projects.
I have, in some academic and other work, tried to show that the right to “freedom of religion” belongs not only to individuals but also to (at least some) 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.
“Religion,” Justice William Douglas observed in his opinion in Wisconsin v. Yoder (1972), is “an individual experience.” It certainly is, but it is not only that. After all, as Justice William Brennan reminded us, in Corporation of the Presiding Bishop v. Amos (1987):
For many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals.
Such “organic entities” are subjects, not merely results or byproducts, of religious liberty. At the center of religious freedom, then, is the principle of “church autonomy” or what the American Jesuit and church-state scholar John Courtney Murray (and many others) called “the Freedom of the Church.” According to Harold Berman, the great legal scholar and historian, the freedom of the church was a “‘Great Idea,’ whose entrance into history marked the beginning of a new civilizational era.” In any event, this idea—or something like it—is an important aspect of any plausible account of religious freedom under and through constitutional law and government.
Michael McConnell observed a little while ago that although “‘freedom of the church’ was the first kind of religious freedom to appear in the western world, [it] got short shrift from the Court for decades.” However, he continued, “it has again taken center stage.” It seems that it has. Indeed, Chief Justice Roberts, in his opinion in the Hosanna-Tabor case (2012), gestured toward its place in Magna Carta on the way to concluding for a unanimous court that the Constitution “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.”
But, what is this “great idea”? Berman and others have discussed at length and in depth what it meant during, around, and after the Investiture Crisis of the 11th century. What, though, does and should it mean today?
For starters, the “freedom of the church”—if it means anything—includes the freedom of religious associations, institutions, and communities to govern and order themselves and it constrains the authority of political, secular officials to interfere with that governance. The Supreme Court in Hosanna-Tabor appears to have said as much. Wrote Chief Justice Roberts for the Court:
By forbidding the “establishment of religion” and guaranteeing the “free exercise thereof,” the Religion Clauses ensured that the new Federal Government . . . would have no role in filling ecclesiastical offices. The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.
Later, when affirming that an implication of these prohibitions is the so-called “ministerial exception,” Justice Roberts explained that:
[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.
There is more to the idea, though, than its core. I have proposed that we can usefully think about the “freedom of the church” not only as a “black letter” legal rule; and not so much as a single organizing principle like “equality,” “neutrality,” or “liberty of conscience”; but also as a way of describing the confluence of and relationship among a variety of constitutional, political, and moral arguments and themes. That is, the “freedom of the church” might—for us, today—function less as a rule, standard, or doctrine (though it will function this way sometimes, as in Hosanna-Tabor) and more like a background or animating value, even a mood.
It might, for example, serve in law and policy as a kind of placeholder, or as a point of entry, for the argument that political and personal liberties are best protected through competition and cooperation among plural authorities and jurisdictions and through structures and mechanisms that check, diffuse, and divide power.
Additionally, it echoes and perhaps reinforces the arguments of scholars like Paul Horwitz and Fred Schauer regarding the importance of “First Amendment institutions” and the “infrastructural” role they play in clearing out and protecting the civil-society space within which the freedom of religion is exercised and in creating the conditions and opportunities for that exercise. Freedom of religion, after all, is not only lived and experienced in and through institutions, it is also protected, nourished, and facilitated by them. An appropriate appreciation for “the freedom of the church” might inspire careful attention to what the Second Vatican Council called the “conditions for the fostering of religious life,” that is, the conditions within which “people may be truly enabled to exercise their religious rights and to fulfill their religious duties.”
Furthermore, “the freedom of the church” affirms and reflects what Mark DeWolfe Howe called
[the] pluralistic thesis . . . that government must recognize that it is not the sole possessor of sovereignty, and that private groups within the community are entitled to lead their own free lives and exercise within the area of their competence an authority so effective as to justify labeling it a sovereign authority. To make this assertion is to suggest that private groups have liberties similar to those of individuals and that those liberties, as such, are to be secured by law from governmental infringement.
It confirms, in Murray’s words, that “[w]ithin society, as distinct from the state, there is room for the independent exercise of an authority which is not that of the state.” And, the “freedom of the church” provides a reason and justification for the fact that there are some questions—“religious” questions—that civil or secular courts do not and should not answer. It also provides justification for the doctrine that the First Amendment does not permit state actions that create or require “excessive entanglement” between governments on the one hand and religious institutions, practices, or teachings on the other.
This “great idea” could, in other words, be many ideas. Perhaps the Hosanna-Tabor case, by anchoring the idea’s paradigmatic application firmly in our Constitution and tradition, has provided something of a fixed point of reference for the various other complementing, supporting, and operationalizing themes.
Now, these themes have been closely examined and pointedly criticized, on a variety of grounds, in scholarly literature and elsewhere. Some insist, for example, that principles like “church autonomy” or the “freedom of the church” are suspect because they can be used to protect deeply objectionable or immoral activities and programs. They can, but this is true of many important ideas. Others have contended that rights and liberties properly belong to individuals only and not to groups, associations, or corporate entities. This criticism has some political appeal, but it does not square with our practice or jurisprudence. Still others remind us that using or protecting the idea of “the freedom of the church” in law requires difficult line-drawing and close-call distinctions. But this fact does not mean the idea should be rejected.
At least three other objections have been pressed by Micah Schwartzman and Richard Schragger in an important 2013 article called Against Religious Institutionalism. We might call these the Misplaced Nostalgia objection, the Religion Isn’t Special objection, and the Individual Conscience objection.
With respect to the first, they argue that the “historical account offered by some religious institutionalists is anachronistic, incomplete, and reactionary” and they detect in present-day defenses of the freedom of the church “a form of religious nostalgia, a certain melancholy for the passage of an age in which everyone—or at least all Christians—shared a thick set of religious beliefs and perhaps also a way of life based on common rituals and practices.” In fact, the idea does not—or, at least, it need not—involve nostalgia or reaction. Its defense should not be dismissed as a “melancholy” call for a return to a time of organic social unity, before the collapse of “the sacred canopy,” the disenchantment of the world, and the emergence of pluralism.
It is, of course, true that appeals to, or efforts to mine, “the freedom of the church” risk falling into anachronism. There is a need for translation, not transplantation, of this idea. Still, the “freedom of the church” proposal is fairly modest and for the most part consists in the suggestion that the tradition of protecting and respecting religious liberty under and through law in the United States is richer and more interesting than is sometimes thought (or described in some Supreme Court opinions).
Next, it is objected that religion isn’t “special” (and so religious institutions aren’t, either). First Amendment scholars and others have been wrestling for some time with doubts about the justifiability of treating “religious” claims for exemptions with more solicitude than non-religious, conscientious claims for exemptions. The “freedom of the church” idea presumes and proposes that religion is special—or, more precisely, that religious institutions, communities, and authorities are and should be differentiated, at least for some purposes, both from political authorities and from non-state institutions and voluntary associations generally.
To embrace this idea as still-relevant is to claim that religious institutions have a distinctive place in our constitutional order—and not only a distinctively worrisome or harmful one. It is to suggest that churches are not “just like the Boy Scouts” and that, while they to a large extent function in civil society in the same way and deliver the same Tocquevillian benefits as any number of voluntary associations, they are, in the end, different.
True, it is increasingly difficult, within the boundaries of argument set down by some versions of liberal political theory, to justify, on principled grounds, special treatment for religious liberty. Still, in our history and tradition, “religious” institutions and authorities have acted, and have been regarded, as special and distinct, whether or not “religion” has been understood as neatly separate from “culture,” “conscience,” or “morality.” We live under a written Constitution that “singles out” religion and we inhabit a tradition in which “church” and “state” have, in a special way, cooperated and contended. If it is anachronistic to invoke the freedom of the church, it seems even more ahistorical to deny the distinctive (for better or worse) place and role of religious actors in that tradition, and today.
Finally (for now), proposals to bring “the freedom of the church” back to center stage have been criticized for neglecting, or even supplanting, the rights-bearing individuals who appropriately star in the post-Enlightenment show and for allowing the rights and liberties of churches and institutions over those of natural persons. Schragger and Schwartzman, for example, express the concern that “the freedom of the church” “put[s] church first,” and thereby “inverts the usual formulation whereby institutional autonomy is derived from individual rights of conscience.”
The “freedom of the church” proposal, however, does not subordinate individuals’ religious-liberty rights to those of institutions. Nor is it being claimed that the freedom of the religious conscience from government coercion “derives” from the autonomy, sovereignty, or independence of churches or other religious institutions. The historical and continuing significance of “the freedom of the church” is not that it somehow grounds or trumps individuals’ religious liberty or freedom of conscience, but that it checks and limits state and political power and thereby helps to protect the liberty and conscience of institutions and individuals alike.
To be sure, there is no getting around the fact that the “freedom of the church” idea, or cluster of ideas, is a challenge to many contemporary assumptions, premises, and commitments. It remains to be seen whether, or to what extent, it can be incorporated faithfully—that is, in a way that is faithful to the idea—into an account of religious liberty and church-state relations that is plausible, let alone attractive, to present-day citizens and scholars. It may be that it cannot. If not, we should be willing to question not only the idea itself but also the standards we use to identify attractive accounts.
The effort to retrieve, translate, and incorporate “the freedom of the church” confronts more than a few obstacles.
First, there is the centrality in contemporary political theory and morality of the individual. The appeal of an idea that seems to privilege institutions over individuals seems limited given that, more and more, we think in terms of personal spirituality rather than institutional affiliation, public worship, or tradition.
Next, there is the reality of religious difference and diversity. There is no one “church” any more than there is one “state.” As Schragger and Schwartzman insist:
The issue is how the freedom of the church can be made plural—how to move from the Middle Ages to the Reformation and eventually to our modern experience of religiously diverse, liberal democratic societies, without losing the claim of church sovereignty that drives the various forms of religious institutionalism.
A related, and quite substantial, obstacle is the rise of the modern, liberal, sovereign state and the tension between its claims and any pluralist account of authority. The state, even if it stops short of attacking non-state authorities as “worms within the entrails” of the body politic, and even if its powers are constitutionally conferred, enumerated, and limited, seems likely to regard non-state authority as only provisionally held and exercised and to insist that it be exercised in accord with the same norms that (appropriately) govern the state itself.
The fourth, and perhaps most formidable, obstacle to translation is the lack of interest in translating. As always, there are those who are comfortable with, or who have a stake in maintaining, the doctrinal and conceptual status quo. As Steven Smith has observed:
[A]ny . . . reorientation would require judges and scholars—and citizens generally—to unthink and unlearn much that has come to be taken for granted, and to recover interpretive possibilities that have largely been forgotten.
All that said, the idea of, and the on-the-ground struggle for, “freedom of the church” mattered in the past and matters today. It is an old but still important idea. It is significantly, but not entirely, out of place in today’s constitutional-law and law-and-religion conversations. But, if it can be retrieved and translated, then it should be—not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.
 See generally, for example, Richard W. Garnett, “The Freedom of the Church”: (Towards) An Exposition, Translation, and Defense, 21 J. Contemp. Legal Issues 33 (2013); Richard W. Garnett, Religious Liberty, Church Autonomy, and the Structure of Freedom, in J. Witte & F. Alexander, eds., Christianity and Human Rights: An Introduction (2011); Richard W. Garnett, The Freedom of the Church, 4 J. Cath. Social Thought 59 (2007).
 See generally, John Courtney Murray, We Hold These Truths: Catholic Reflections on the American Experience 186-90 (2005 ed.).
 Harold Berman, Law and Revolution 87 (1983).
 Michael W. McConnell, Reflections on Hosanna-Tabor, 35 Harv. J.L. & Pub. Pol’y 821, 836 (2012).
 See for example Paul Horwitz, Freedom of the Church Without Romance, 21 J. Contemp. Legal Issues 59 (2013); Richard Schragger & Micah Schwartzman, Against Religious Institutionalism, 99 Va. L. Rev. 917 (2013); Steven D. Smith, Freedom of Religion or Freedom of the Church?, in A. Sarat, ed., Legal Responses to Religious Practices in the United States (2012).
 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694, 702 (2012).
 Paul Horwitz, First Amendment Institutions (2012).
 Frederick Schauer, Principles, Institutions, and the First Amendment, 112 Harv. L. Rev. 84 (1998).
 Pope Paul VI, Dignitatis humanae, ¶ 6 (1965).
 Mark DeWolfe Howe, Foreword: Political Theory and the Nature of Liberty, 67 Harv. L. Rev 91 (1953).
 Murray, We Hold These Truths, at 70-71. See generally John Inazu, The Four Freedoms and the Future of Religious Liberty, 92 N. C. L. Rev. 787 (2014) (presenting a theory of “strong pluralism”).
 See for example Frederick Mark Gedicks, An Unfirm Foundation: The Regrettable Indefensibility of Religious Exemptions, 20 U. Ark. Little Rock L. J. 555 (1998).
 Richard W. Garnett, Religion and Group Rights: Are Churches (Just) Like the Boy Scouts?, 22 St. John’s J. Legal Comment. 515 (2007).
 Michael McConnell’s phrase from his article, “The Problem of Singling Out Religion,” 50 De Paul L. Rev. 1 (2000-01)
 Steven D. Smith, Freedom of Religion or Freedom of the Church?, in Legal Responses to Religious Practices in the United States 45 (Austin Sarat ed., 2012).