The importance of Free Enterprise Fund will be felt for years to come because it heralds the return of separation of powers.
Richard Garnett’s Liberty Forum essay argues eloquently for the importance of institutional religious freedom in our system of government and our broader society. As Garnett writes, some form of institutional religious liberty, or “freedom of the church,” is an “old but still important idea.” It’s an idea, moreover, that in one form or another has occupied an increasing amount of attention in recent public controversies and Supreme Court cases involving religion. Few writers have presented it as clearly or attractively as Garnett has, here and in other work.
I can hardly add much to that. Let me instead offer a few thoughts by way of reaction to what Garnett has written here. They are mostly intended to help frame our discussions concerning the freedom of the church. Framing is particularly important here, I think, because religious institutionalism, or advocacy of the freedom of the church, tends to be seen through the lens of other debates in constitutional law and in politics itself: between liberalism and libertarianism, between liberty and equality, and so on. This can lead critics of the freedom of the church—and supporters, too—to draw incorrect conclusions about the concept’s place within these ongoing debates. As we continue to explore its history, justifications, and potential application to current legal disputes, those of us who have argued for the importance of some form of religious institutionalism need to make clear the ground on which we stand.
First, it is worth making clear that ours is not necessarily a libertarian position. Garnett quotes John Courtney Murray, who writes that the freedom of the church confirms that “within society, as distinct from the state, there is room for the independent exercise of an authority which is not that of the state.” I agree. Supporters of religious institutionalism believe that it is a mistake to think of the entire ground of human activity as involving either the state or the individual. We believe that the state is just one of a number of central institutions that make up civil society. Churches, associations, universities, the press, and other “mediating institutions” play a role that is equally important in settling and guiding human affairs and enabling human flourishing. The law should recognize this. Wherever possible, it should hesitate to assert itself as a dominating force with respect to these institutions.
But none of this necessarily requires complete skepticism about or outright hostility to government. It demands a chastened state, perhaps—one that recognizes that it is just one piece of the organizing structure of society. The state should acknowledge that it grew alongside these other institutions, but that it did not create them and should not treat them as existing by sufferance and only under the terms it sets.
None of this means that institutionalists disdain the state, however. At the very least, the state is one of those central institutions, and one that at least attempts to consider and answer to everyone. Institutionalists may believe that churches and other institutions play a vital role in public life, and that the state itself should respect those institutions and be willing to limit its reach so as to allow them to carry out their own necessary functions. But they need not believe that the sphere of legitimate state activity is highly limited or utterly minimal, or that the state is no more than a night watchman. Institutionalists—like everyone else—may differ on how to strike the balance between the state and other institutions. But their views are not intrinsically libertarian, in the way we typically use that term these days.
This point is, I think, highly relevant to current debates within law and religion. It has been especially evident in reactions to the Supreme Court’s six-week-old decision in Burwell v. Hobby Lobby Stores, Inc., and the general controversy surrounding the contraceptive mandate. I think that decision was right, even as it raises questions about its limits. But some of the decision’s critics think that anyone who supported Hobby Lobby’s claim must be interested in launching a covert strike on the Affordable Care Act altogether, or that their position is one of “unrelenting libertarianism,” to quote Professor Samuel Bagenstos.
This is not accurate; at least, not for everyone. It is true that a robust form of religious institutionalism raises hard questions about the balance between religious accommodation and antidiscrimination laws. But I think, or would like to think, that many of us who have written in favor of church autonomy and similar positions are not interested in rooting ourselves firmly on one side or the other of a debate between robust regulation and robust libertarianism. We are interested in circumscribing the state—in “check[ing] and limit[ing] state and political power,” in Garnett’s words—not in smashing it. More generally, we insist that the current vocabulary, with its often Manichaean divisions, does not capture the entirety or richness of civil society. We are trying to speak in a different language.
I think those critics who see religious institutionalism as nothing more than a cover for a libertarian assault on civil rights laws or any other aspect of government are mistaken. By the same token, I think committed libertarians would be wrong to see us as absolute, unstinting allies. Our interests may align but they are not identical.
The controversies around the Hobby Lobby case, and before that the ministerial exception case from 2012, Hosanna-Tabor, raise another important issue. Garnett writes that religious institutionalism (and I think this could be said of other forms of institutional autonomy, such as academic freedom) is sometimes more of an “animating value” or “mood” than a hard set of legal doctrines. That insight is relevant to many of our current debates. Even those who believe that the state’s authority is not utterly minimal, or who believe that there is great value in many aspects of our current civil rights laws, may believe that howcitizens and the state go about structuring our legal regime matters.
In particular, we may believe that an important piece of that structure is accommodation. Religious and other institutions play a valuable social role and display an (imperfect) capacity for self-regulation. Most of them, moreover, generally behave in ways that are consistent with generally shared social values. Given this, and given the recognition that the state plays a coequal but not necessarily dominant role alongside those institutions in civil society, there are times when the state, even if it can regulate those institutions, should not.
Our laws have always made accommodations and exemptions—not just out of respect for the individual conscience, but because we recognize the important independent role played by these institutions in civil society and wish to encourage and safeguard it. We may argue in particular cases about whether such accommodations are a matter of legislative discretion or of judicially enforceable constitutional command. But we should not—as some these days seem increasingly inclined to do—reject the value of accommodation altogether. There is room for more than one institution in our social infrastructure. The state should recognize and allow for that fact; and citizens who believe in the importance of pluralism should not forget it, either.
A final point is worth making in response to Garnett, and in response to those who have strongly criticized religious or other forms of institutionalism. For various reasons, institutionalists believe that the state cannot or should not attempt to reach deep into the affairs of various central societal institutions, to insist that their rules and governing structures mirror those of the state itself. We talk in terms of, in this instance, the “freedom of the church” or “church autonomy.” But this 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.
Given a long record of failures by various institutions, we should not assume that churches (or universities, or newspapers, or what have you) will always act irreproachably. We know they will not. (Nor will the state, of course.) There may be important occasions on which the state itself is disabled from requiring them to act differently. But although churches and other institutions are sometimes beyond regulation, they are never beyond criticism.
To the contrary, the 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. The Boy Scouts of America may be constitutionally entitled to exclude gay scoutmasters. But members of the Scouts, and others, who disagree with this decision should speak up and urge a change in policy. The ministerial exception may shield churches from some legal disputes over employment. But it should not and cannot insulate them from internal and public disagreements about how they should behave toward their employees.
Critics of religious and other forms of institutionalism are wrong to suggest, as some do, that this idea is all about seeking complete license for terrible behavior. By the same token, those of us who champion institutionalism, having argued that the state cannot regulate every form of institutional conduct, must emphasize our own collective responsibility, within and beyond particular institutions, for monitoring and criticizing that behavior ourselves. We may disagree about what constitutes good or bad conduct in particular cases. But we must shoulder the burden implied by our view.