an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
What The Constitution in 2020 calls a “progressive vision of constitutional law in the years ahead” should, I believe, re-discover, incorporate, and emphasize what might seem a not-very-progressive – because very old – idea. Here it is: Constitutionalism generally, and religious freedom more specifically, are well served by the protection and flourishing of an array of self-governing non-state authorities. The Jacobins were wrong. In a nutshell, religious liberty is both nurtured in and protected by – it needs, I think – religious communities, associations, and institutions.
The contributions to the volume dealing with politics, democracy, and expression – in particular, the essays written by Robert Post and Yochai Benkler – are sensitive to the structures through which we participate in politics and engage in protected, democracy-enhancing speech. They are attentive, in other words, to the infrastructure that is required for the exercise and maintenance of cherished freedoms.
Well, 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. The values and goods that the First Amendment’s Religion Clauses are today understood to embody and protect—and, we can usefully refer to this cluster of goods and values as “religious freedom”—are well served by a civil-society landscape that is thick with religious institutions and associations, and by legal rules that acknowledge and capture their importance. These institutions contribute to—they do not only benefit from, and they are not only protected by—the reality of religious freedom under law.
The theories and doctrines we use to understand, apply and enforce the First Amendment’s religious-freedom provisions should reflect and respect this fact. They should not be constructed solely to deal with the problems that were the focus of the thoughtful essays on religious liberty contributed by Noah Feldman and Bill Marshall, namely, the task of identifying the bounds of permissible religion-regarding spending or expression by government. Religious liberty, fully understood, involves not only the immunities of believers but also what was once called “the freedom of the church.” And, as Feldman and Marshall explain, the separation of church and state involves legal arrangements and constitutional constraints whose point is not so much to artificially exclude religious faith from our civil and political lives as to respect religious institutions’ independence and autonomy.
In my view, if we want to understand well the content and implications of our constitutional commitment to religious liberty, we need to ask, as Chip Lupu and Bob Tuttle once put it, whether “religious entities occupy a distinctive place in our constitutional order.” I believe they do, and should. Today, though, American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals’ rights, beliefs, consciences, and practices. The distinctive place, role, and freedoms of groups, associations, and institutions are often overlooked. This pattern is consistent with the widespread assumption that, because the individual religious conscience is and must be free, religion itself is entirely private. However, an understanding of religious faith, and religious freedom, that stops with the liberty of conscience, and neglects institutions and communities, will be incomplete. And, so will the legal arrangements that such an understanding produces.
Indeed, it could be that the Supreme Court’s Religion Clauses doctrine is famously confused and confusing, not because religion is inherently “divisive,” not because scholars disagree about the content and relevance of the First Amendment’s original meaning, and not because that doctrine is the product of changing groups of judges, appointed by Presidents of different parties, with a range of values and commitments. Instead, it could be that our constitutional doctrine and our thinking about religious freedom under law do not reflect, capture and translate very well the importance of particular institutions in the constitutional order and to the values that the First Amendment should serve.
Now, how does the infrastructure of religious freedom work? How, exactly, do churches (and the like) shore up (and not just find shelter within) the freedom of religion? It is clearly not by supplanting the freedom of the individual religious conscience as the ultimate beneficiary of religious freedom under law. Quite the contrary. As I have spelled out in more detail elsewhere, the existence and independence of religious institutions long served, and is still needed today, as – in John Courtney Murray’s words – the “social armature to the sacred order,” within which the individual human person could be “secure in all the freedoms that his sacredness demands.”
Of course, the days are long gone – and 2020 will not bring them back – when we could speak of the Church as the chief rival to, check upon and sometimes close partner with the State. Today, in our religious-freedom doctrines and conversations, it is likely that the independence and autonomy of churches, and of religious institutions and associations generally are seen as deriving from the free-exercise or conscience rights of individual persons rather than as providing the basis for the exercise of those rights. (Indeed, many would say, and perhaps celebrate the fact, that institutions are becoming less important to our religious, or “spiritual,” lives.) It remains the case, though, that the existence and independence of religious institutions are needed to – quoting Murray again -- “check the encroachments of secular power and preserve [the] immunities” of our “basic human things.” Murray was right to worry that the individual conscience, standing alone, is not up to the task of creating and sustaining the conditions necessary to ensure religious freedom; it is not, as he put it, “equal to the burden” of serving as the “sole authentic mediator of moral imperatives to the political order” and the “keystone of the modern experiment in freedom.” An institutional approach to the Religion Clauses – an approach that is consistent with the reality of increasing pluralism and should therefore be attractive to progressives -- would recognize this worry, and have responding to it as its chief aim.