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Freedom of the Church

I am grateful to the Liberty Law Forum for publishing my short essay, Freedom of Religion and the Freedom of the Church and for securing thoughtful, helpful responses from John Inazu, Paul Horwitz, and Donald Drakeman. These three first-rate scholars are my friends and teachers; I have learned a great deal from their work and through their examples. It proved difficult for me to write this reply to their pieces because I had to resist the temptation to simply treat them entirely as welcome, friendly, and improving amendments to my own essay. It seems to me that perhaps the four contributions are best as a kind of collaborative chain novel rather than as staking out contending claims or competing arguments. In the children’s game “Telephone,” the fun comes from the fact that the story becomes more garbled and strange with each new contribution. In this case, though, the primary point of my original essay – that is, that the idea of the “freedom of the church” can and should be “retrieved and translated . . . not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter” – seems to have been refined, sharpened, and strengthened. Again, I am grateful.

All that said, a reply was requested and agreed to, and so will be offered.

Donald Drakeman’s contribution, “Negotiating the Freedom of the Church,” performs a valuable service by doing something that is not done as often as it should be in law-and-religion scholarship, namely, he investigates and addresses on-the-ground, real-world facts. That is, he brings to the conversation about the role of religious institutions and the rights of corporations interesting information about what people actually believe. And, it turns out, most people believe that religious institutions or corporations can and do enjoy and exercise religious-freedom rights. Also, most people distinguish, at least for some purposes, among “publicly held corporations,” “churches and other places of religious worship,” and “religiously affiliated colleges and hospitals.” Drakeman infers from this and other relevant facts that “[a]s the religious mission moves out of the church and toward more direct contact with the world . . . the rest of the world may push back.” In the face of this pushback, he suggests, “churches may need to articulate not only the religious importance of their educational and healing missions, but also the practical importance to society of the churches’ continuing to maintain them.”

I agree entirely. What’s more, Drakeman’s suggestion serves to underscore the importance of insisting that there is more to religious freedom than an accommodations-and-exemptions regime. After all, such a regime always and inevitably (and understandably) involves the balancing, by the state, of the costs and benefits, to and for the state, of accommodations and exemptions. A political community that loses sight of the many ways that religious institutions’ and actors’ religious and religiously motivated activities serve the common good is going to be less likely to accommodate and exempt. It is important, then, to emphasize that a moral and legal commitment to religious freedom also involves an appreciation and (enforced) respect for the limited but still real “autonomy” of religious institutions and actors as well as for the limits on the state’s regulatory authority.

Paul Horwitz – whose important book, First Amendment Institutions, has both shaped and challenged my thinking about the subject under discussion – is right to remind readers that “religious institutionalism” is “not necessarily a libertarian position”; it does not require or even invite “disdain for the state”; it is does not reflect or imply “complete skepticism about or outright hostility to government.” It does, I think, necessarily involve (as Horwitz says) the ungrudging acceptance – indeed, the welcoming – of non-state authorities and of occasional “incongruence” (to borrow Nancy Rosenblum’s term) between, on the one hand, the rules that govern and the goals that move the liberal state and, on the other, the practices and values of non-state groups, communities, associations, and institutions. As my colleague, Robert Rodes, has put it, there is a “nexus” between religious and political authorities that involves both cooperation and contestation, mutual support and resistance.

Horwitz underscores another point (one that I also tried to make in a short paper called, “Church, State, and the Practice of Love”: To endorse the “freedom of the church” or “church autonomy” “is hardly the same as insisting that these institutions can never err. Autonomy involves the right to make central choices, not the assurance that the right choices will always be made.” He continues: “[T]he committed institutionalist must be an active observer and critic of these institutions, urging them to do the right thing (as he or she understands it) whether or not they are legally obliged to do so.” Absolutely. The “freedom of the church” claim is that the state’s authority is limited, that other authorities exist and operate, and that – all things considered – pluralism is conducive to human flourishing. It is not the (easily falsifiable) claim that non-state authorities, or religious institutions specifically, never act badly.

John Inazu, whose arguments about and for pluralism in Liberty’s Refuge: The Forgotten Freedom of Assembly and elsewhere are crucial contributions to the conversation about religious institutions, expressed concern “about two aspects of the workability of [my] proposal: scope and translation.” He points out, and it is fair to point out, that I need to say more about what the “freedom of the church” idea means in practice, in legal doctrines, in “actual cases and controversies.” And, he suggests that more needs to be done to connect the idea to the First Amendment’s text and history. I appreciate and accept these suggestions and hope to meet these challenges in my ongoing academic work. For present purposes, though, I will have to settle for making explicit what was not well stated in my opening essay, namely, that, in my view, the content of the freedom of religion which our First Amendment’s Free Exercise and Establishment Clauses protect includes at least something of the “freedom of the church” as I have described it.

Inazu also expresses some doubt – friendly doubt, I think, but doubt nonetheless – about the “constitutional” and especially the “theological” limits on what I called the “translation, not transplantation” of the “freedom of the church” into present day law and practice. He writes, “The freedom of the church is first and foremost a theological argument. Some theological arguments are at least partially translatable; indeed, we have seen examples of this kind of translation unfold within American law through concepts like conscience and forgiveness. But other theological concepts are less susceptible to translation from the theological perspectives out of which they emerge.” I take the point, but would respectfully maintain that Inazu is underestimating the political, legal, and social dimensions of the idea and therefore overestimating the theological limits to translation. To be sure, Christians and Christianity have an account of what “the Church” really is that is not political and that is about the “reality of Jesus Christ”, not “the special nature of ‘religion.’” They – we – are called to bear witness to that reality and not to – in Inazu’s words – “domesticat[e]” it or make it more suitable to moderns or comfortable to liberals. Nevertheless, I continue to think that there is plenty of content in the “freedom of the church” idea, argument, proposal, and struggle that is not only translatable to, but urgently needed for, the this-side-of-Heaven project of ordering our lives together.

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