Richard W. Garnett

Religious Freedom and (and in) Institutions

This paper is a contribution to a volume of essays dealing with a range of contemporary challenges – challenges posed by new questions, and by new forces – to religious liberty. It considers the role that religious communities, groups, and associations play – and the role that they should they play – in our thinking and conversations about religious freedom and church-state relations. And, its primary claim is that the values and goods that the First Amendment’s Religion Clauses embody and protect are well served by a civil-society landscape that is thick with churches (and mediating institutions and associations of all kinds) and by legal rules that reflect their importance. These institutions contribute in distinctive ways to the reality of religious freedom under law.

Religious Liberty, Church Autonomy, and the Structure of Freedom

What is the “right to freedom of religion,” a right which our leading human-rights instruments commit us to protecting, and what are the legal and other mechanisms that will sustain and vindicate our commitment? Some mechanisms might be better (or less well) designed for the purpose and so might work better (or less well) than others; some actors and authorities might be more (or less) reliable and effective protectors than others. In other words, the project of protecting human rights – including the right to religious freedom – involves not only reflecting on human goods and goals, but also wrestling with questions about institutional design and competence.This chapter considers both the content of religious freedom and the ways it is protected and promoted. It proposes, first, that the “right to freedom of religion” belongs not only to individuals, but also to institutions, associations, communities, and congregations. Just as every person has the right to seek religious truth and to cling to it when it is found, religious communities have the right to hold and teach their own doctrines; just as every person ought to be free from official coercion when it comes to religious practices or professions, religious institutions are entitled to govern themselves, and to exercise appropriate authority, free from official interference; just as every person has the right to select the religious teachings he will embrace, churches have the right to select the ministers they will ordain.Next, it is suggested that the right to church autonomy is a structural mechanism for protecting both the freedom of religion and human rights more generally. The relationship between the enterprise of protecting human rights and religious communities’ right to self-determination is a dynamic, mutually reinforcing one. Human rights law, in other words, protects church autonomy – it protects the freedom of religious communities to govern and organize themselves, to decide religious matters without government interference, to establish their own criteria for membership, leadership, and orthodoxy, etc. – and, in turn, church autonomy promotes the enjoyment and exercise of human rights. This mechanism is, John Courtney Murray thought, “Christianity’s basic contribution to freedom in the political order.” If we understand and appreciate this contribution, we will better understand and appreciate that often misunderstood and misused idea, “the separation of church and state.”

American Conversations With(in) Catholicism

John T. McGreevys Catholicism and American Freedom tells the story of how America or, more particularly, American liberalism has reacted and responded to Catholic claims about the nature and purpose of freedom. It also addresses how these claims were, in turn, shaped by Catholicisms own interactions with, internal conversations about, and adjustment to American liberalism. As McGreevy shows, for many people and for many years, the Roman Catholic Church served as a foil for American values and ideals and vice versa. Indeed, it is no exaggeration to say that American liberalism has often defined and constructed itself precisely in opposition to its image of Catholicism. At the same time, Catholic institutions, practice, and belief developed in response to American and liberal challenges, and American Catholics have oscillated uneasily between sectarianism, segregation, and counter-culture, on the one hand, and engagement, accommodation, and assimilation, on the other. McGreevys account enriches our studies and conversations not only about church-state relations, but also and more broadly about education, citizenship, and loyalty. His history could improve present-day academic debates about the nature and role of public reason and the place of religious argument and expression in public life, and more generally he takes us to the heart of perennial questions about the prerogatives of the liberal state, the scope and content of religious obligations, and even the nature and end of the human person.

Pluralism, Dialogue, and Freedom: Professor Robert Rodes and the Church-State Nexus

The idea of church-state separation and the image of a wall are at the heart of nearly every citizens and commentators thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith. How, then, should we understand church-state separation? What is the connection between separation, well understood, and religious freedom? What is the place, or role, of religious faith, believers, and institutions in the political community governed by our Constitution? With respect to these and so many other interesting and important questions, the work of Professor Robert Rodes has been and remains a help, a challenge, and an inspiration. This essay is an appreciation, interpretation, and application of Professor Rodess church-state work. In particular, it contrasts the church-state nexus that he has explored and explained with Jeffersons misleading but influential wall metaphor. After identifying and discussing a few of the more salient features of this nexus, it closes with some thoughts about how the leading themes in Rodess law-and-religion writing can help us better understand and negotiate one of todays most pressing religious freedom problems.