Friday, October 18, 2013

'Freedom of the Church' and the Authority of the State

Andrew Koppelman

is the title of a forthcoming paper that I've just posted on SSRN, here.

The abstract follows:

Profs. Michael McConnell, Richard Garnett, Steven D. Smith, and Michael Stokes Paulsen have all argued that the law’s special treatment of religion, notably the ministerial exception upheld in Hosanna-Tabor v. EEOC, should be conceptualized as the "freedom of the church." This formulation is taken to mean that the church is a separate sphere of authority over which the state has no jurisdiction. This medieval notion (the contours of which were contested even in medieval times) is a misleading metaphor for the idea of legal limits on the state’s power over religious bodies. Like other legal limits on the state, such as the protection of shareholders by limited liability or the protection against unreasonable searches and seizures, it is not outside the law, but an artifact of law. It is not the kind of barrier to the assertion of state authority that Thomas Becket had in mind. I develop this argument with reference to the contemporary controversy over the Obamacare contraception mandate.

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