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.